Saeed Ur Rehman v. Secretary for Security and Another

HCAL 1932/2024

[2025] HKCFI 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1932 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 28 October 2024, the Applicant seeks leave to apply for judicial review so as to challenge the Deportation Order for life, made against him on 9 August 2024. The Deportation Order was made pursuant to section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”).

2.The Applicant has named the Secretary for Security (“Secretary”) and the Director of Immigration (“Director”) as Putative Respondents.

3.By my directions dated 4 November 2024, I gave leave to the Secretary and Director to file an Initial Response to the application, and leave to the Applicant to file a Reply. I indicated that depending on the contents of those documents, I would decide whether to deal with the application for leave to apply for judicial review on paper and, if so, that I would proceed to do so without further notice to the parties.

4.The original timetable for filing those documents was extended following the Applicant’s application for legal aid, which triggered the usual automatic 42-day legal aid stay. No request was made to lift that stay, and the timetable for filing documents was altered to permit the Initial Response to be filed on or before 16 December 2024, and any Reply on or before 13 January 2025.

5.The Initial Response dated 16 December 2024 was provided by Ms Kristy Tse, Government Counsel of the Department of Justice.

6.By letter to the Court dated 1 January 2025, the Applicant suggested that he did not know how to proceed without legal advice, and that he had an outstanding legal aid application, as well as an outstanding appeal to the Registration of Persons Tribunal (“ROPT”). The Applicant asked the Court to advise him, or to wait for his legal aid to be approved before proceeding.

7.No Reply to the Initial Response was filed by the Applicant by the deadline set by me.

8.Having considered the materials, first I see no good reason to delay my consideration of this case, and secondly I am satisfied it is appropriate to deal with this application on the papers.

9.This is my Decision.

B.  Relevant Background

10.Ms Tse has helpfully provided background information in the Initial Response, which I can conveniently broadly adopt as follows.

11.The Applicant is a Pakistani national. He has recently been held in immigration detention, pending his removal or deportation from Hong Kong.

12.In December 2006, the Applicant married Ms Bibi Asma (“Ms Bibi”) in Pakistan. Ms Bibi is a Hong Kong permanent resident (“HKPR”). They had a daughter born in December 2008. The marriage of the Applicant and Ms Bibi was dissolved in February 2016.

13.Prior to that, the Applicant was approved to join Ms Bibi as a dependant in April 2007. On 22 May 2007, he entered Hong Kong on the strength of his dependant visa with a limit of stay granted up to 22 May 2008. Various extensions of stay were subsequently granted, and the Applicant’s dependant visa was last extended up to 15 April 2016. Since that date, the Applicant has been overstaying in Hong Kong.

14.On 9 March 2015, the Applicant was convicted of the offence of ‘Possession of dangerous drug’, and on 23 March 2015 he was sentenced to be admitted to Drug Addiction Treatment Centre.

15.On 8 April 2016, the Applicant made an application for Verification of Eligibility for Permanent Identity Card (“1^st Application for VEPIC”). That application was refused by the Director on 7 September 2016, on the basis that the Applicant was not able to meet the requirement of having ordinarily resided in Hong Kong for a continuous period of not less than 7 years under paragraph 2(d) of Schedule 1 to the Ordinance. The Director considered that the Applicant’s sentence of being admitted to the drug addiction centre constituted a break in the continuity of his ordinary residence in Hong Kong immediately before the date of his 1^st Application for VEPIC.

16.On 4 August 2017, the Applicant was convicted of the offence of ‘Attempted burglary’ and sentenced to 3 years and 3 months’ imprisonment. He completed that sentence on 2 March 2019.

17.On 25 March 2019, the Applicant lodged an out-of-time application for leave to apply for judicial review against the refusal of his 1^st Application for VEPIC. That application, in HCAL 906/2019, was later dismissed on 24 August 2019.

18.In the meantime, on 16 April 2019, a Removal Order was made against the Applicant. On 25 April 2019, the Applicant declared that he would not appeal against the Removal Order.

19.On 30 April 2019, the Applicant filed an application for Hong Kong Permanent Identity Card (“1^st Application for HKPIC”). That application was refused by the Commissioner of Registration (“Commissioner”) on the same day, on the basis that there was insufficient evidence to show that the Applicant had the right of abode in Hong Kong. Also on the same day, the Applicant lodged an appeal to the ROPT against the refusal of his 1^st Application for HKPIC. That appeal was later dismissed by the ROPT on 21 February 2024.

20.On 30 April 2021, the Applicant was convicted of ‘Gambling in a gambling establishment’ and was sentenced to a fine of HK$500. On 12 December 2023, the Applicant was convicted again of the same offence and sentenced to a fine of HK$1,000.

21.On 10 April 2024, the Applicant made another application for Verification of Eligibility for Permanent Identity Card (“2^nd Application for VEPIC”).

22.On 9 July 2024, the Applicant’s 2^nd Application for VEPIC was refused. The Director considered that the Applicant’s overstaying in Hong Kong since 16 April 2016, and his imprisonment sentence arising from his attempted burglary conviction constituted a break in the continuity of his ordinary residence in Hong Kong immediately before the date of his 2^nd Application for VEPIC.

23.On 23 July 2024, the Applicant was served with a ‘Notice of Consideration of Deportation’, to which he objected on the ground that his family members are living in Hong Kong. In addition to the daughter born to the Applicant and Ms Bibi, the Applicant has a further son and daughter with his girlfriend Ms Ashrina Emaan Jameel (“Ms Jameel”), born in August 2015 and September 2017 respectively. Ms Jameel and the Applicant’s three children are HKPRs.

24.On 26 July 2024, the Director made an application to the Secretary for a Deportation Order for life against the Applicant, on the ground that his continued presence in Hong Kong was undesirable.

25.On 9 August 2024, the Deportation Order for life was made against the Applicant. It was made by the Permanent Secretary for Security (“PS for S”), under delegated power. It was made under section 20(1)(a) of the Ordinance, on the basis that the Applicant was not a HKPR and that he had been found guilty of an offence punishable with imprisonment for not less than two years. The Deportation Order was served on the Applicant on 14 August 2024.

26.On 27 August 2024, the Applicant filed another application for Hong Kong Permanent Identity Card (“2^nd Application for HKPIC”). That application was refused by the Commissioner on the same day, on the basis that there was insufficient evidence to show that the Applicant had the right of abode in Hong Kong.

27.On 9 September 2024, the ROPT acknowledged receipt of the Applicant’s Notice of Appeal against the refusal of his 2^nd Application for HKPIC. That appeal is under processing.

28.On 28 October 2024, the Applicant brought the current proceedings seeking leave to apply for judicial review to challenge the Deportation Order.

29.On 5 December 2024, the Applicant was sentenced to 4 weeks’ imprisonment for ‘Assault occasioning actual bodily harm’.

C.  Intended Grounds of Review

30.The Form 86 does not identify any grounds on which relief is sought. But the attachment to the Applicant’s affirmation appears to identify the following intended grounds:

(1)  There will be hardship caused if he is deported, because he has three children in Hong Kong.

(2)  There is an outstanding ROPT appeal against the refusal of his 2^nd Application for HKPIC.

31.Further, though not framed as an application for writ of habeas corpus, the affirmation also appears to assert that the Secretary/Director are no longer using the power to detain only for the purpose of his removal/deportation. There is nothing in that assertion. Prior to the making of the Deportation Order, the Applicant was detained under the statutory power which permits detention pending consideration of the making of a deportation order. Since then, the Secretary/Director has plainly intended to execute the Deportation Order, and there is no basis to suggest that the Applicant has been detained for any purpose other than that one.

D.  Hardship

32.The Applicant suggests that hardship will be caused if he is Deported, because he has three children in Hong Kong (though I note some suggestion on the papers that the eldest child is not currently living in Hong Kong).

33.On the other hand, Ms Tse submits that this does not identify any reasonably arguable grounds of review against the making of the Deportation Order. I agree.

34.First, the Applicant does not hold HKPR status, and he has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years. As a result, there was clearly the statutory power under section 20(1)(a) of the Ordinance for the lawful making of the Deportation Order.

35.Secondly, there was no apparent procedural impropriety in the making of the Deportation Order. The Applicant was given opportunity to make representations, which were taken into account together with all the other relevant facts and circumstances of the case at the time of the making of the decision. There is no proper basis to infer that the PS for S/Director did not take potential hardship to the Applicant and his family into consideration, simply because the decision was adverse to the Applicant. In fact, the relevant internal minute (provided together with the Initial Response) identifies that the representations made by the Applicant were referenced and taken into account.

36.Thirdly, it is settled that the PS for S or Secretary is under no general duty to take into account family, compassionate or humanitarian factors when considering whether a deportation order should be made. If those factors are taken into consideration, the weight to be attached to them is a matter for the PS for S or Secretary, subject only to potential intervention by the Court on the basis of Wednesbury unreasonableness or irrationality. The relevant internal minute identifies clear consideration (by both the Director and the PS for S) of the potential hardship arising from deportation depriving the Applicant of his proximity to his family members, and the weighing and balancing of those matters against the various other factors taken into consideration.

37.Fourthly, in any event, I accept Ms Tse’s submission that there is no arguable basis to suggest the decision to make the Deportation Order was unreasonable or irrational.

38.This ground is not reasonably arguable.

E.  Outstanding ROPT Appeal

39.It seems that the Applicant made his appeal on 9 July 2024, the same day as the refusal of his 2^nd Application for HKPIC. The appeal was accepted by the ROPT on 9 September 2024, and is under processing.

40.The Applicant suggests that the Immigration Department will need a minimum of nine months to prepare the necessary documents, after which a hearing date of the appeal would be fixed. Therefore, the Applicant suggests that the appeal hearing in the ROPT would not be before the end of 2025 or maybe in 2026.

41.Hence, where the purpose of the appeal is to seek a Hong Kong Permanent Identity Card, the Applicant says that he should not be asked to leave Hong Kong before the appeal is determined.

42.However, I accept the submission from Ms Tse that the ROPT appeal is not a legal impediment to removal. The Applicant can continue with his appeal, without being present in Hong Kong.

43.I also agree that the Applicant’s outstanding ROPT appeal seems to have little or no merit. The Applicant has previously applied twice for Verification of Eligibility for Permanent Identity, and both were refused on the basis of the break in continuous periods of ordinary residence – arising from overstaying and from sentencing for criminal convictions.

44.I also note (1) the previous intended judicial review challenge against the refusal decision of the Applicant’s 1^st Application for VEPIC was dismissed, and (2) that there has been no attempted challenge to the refusal decision of the Applicant’s 2^nd Application for VEPIC – perhaps because, as it seems, the refusal was obviously correct in light of the facts that in the 7-year period immediately before the application in April 2024, the Applicant had been either an overstayer or in prison, or both.

45.This ground is not reasonably arguable.

F.  Result

46.The Applicant has failed to identify any reasonably arguable public law grounds of review for challenging the Deportation Order, with any realistic prospect of success.

47.In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed. I make no order as to costs.

The applicant, acting in person

Ms Kristy Tse, Government Counsel, of the Department of Justice, for the putative respondents