Juthe Chhetri v. Permanent Secretary for Security

HCAL 612/2025

[2025] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 612 OF 2025

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BETWEEN

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D E C I S I O N

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A. Introduction

1.On 14 May 2005, the Applicant (an illegal immigrant)  was made subject to a Deportation Order for life, following his conviction and sentence served for a serious criminal offence.  Over the last 20 years or so, the Applicant has made 10 unsuccessful requests for the suspension or rescission of the Deportation Order.  In these proceedings, the Applicant seeks to challenge the decision made on 6 January 2025 (“Decision”)  by the Permanent Secretary for Security (“PS for S”), refusing the 10^th such request. 

2.The type of relief sought by the Applicant in his Form 86 is in two orders of mandamus (1) to compel the PS for S to provide valid reasons for refusing to suspend or rescind the Deportation Order, and (2) to compel the PS for S to take the Applicant’s family and personal circumstances into account, including that his wife and four minor children all have Hong Kong Permanent Resident (“HKPR”)  status.  The relief sought is grounded on the offered reasons that the PS for S has not provided valid reasons as to why the request was rejected, and that the PS for S failed to consider the Applicant’s family and personal circumstances. 

3.In accordance with the request made in the Form 86, I directed an oral hearing of the application for leave to apply for judicial review.  I also permitted the PS for S, and the Secretary for Security (“S for S”)  as interested party, to file an initial response to the application in advance of the oral hearing.  An initial response dated 10 April 2025 was provided by Ms Crystal Wong, Government Counsel. 

4.At the hearing on 15 April 2025, the Applicant appeared in person, with the benefit of a Nepali interpreter.  The PS for S and the S for S were represented by Ms Wong, who relied on her initial response. 

5.At the conclusion of the hearing, I reserved my decision to be handed down on the following day. 

6.This is my reasoned decision. 

B.  Background

7.Though I think it is convenient to set out the background matters in sections related to certain topics or elements, I also keep in mind the overall chronology of events which can be constructed from these different elements. 

B.1  Immigration Status

8.The Applicant is a 47-year-old Nepalese national.  On 13 December 1997, he entered Hong Kong as a visitor.  On 3 July 1998, he was permitted to remain in Hong Kong as a dependant of his father, with limit of stay last extended until 8 June 2003. 

9.On 20 March 2003, the Applicant was arrested for the offence of “assault with intent to rob”.  On 5 August 2003, the Applicant was convicted of that offence and then sentenced to 3 years’ imprisonment.  On 5 May 2005, his appeal against conviction and sentence was dismissed by the Court of Appeal. 

10.On 14 May 2005, the Deportation Order for life was made by the PS for S under section 20(1)(a)  of the Immigration Ordinance Cap 115 (“Ordinance”).  After his release from prison, the Applicant was held in Immigration Department custody until release on recognizance on 30 July 2008. 

B.2  Torture and Non-Refoulement Claims

11.On 22 September 2005, the Applicant lodged a claim (“torture claim”)  under the Convention Against Torture and Other Cruel, Inhumane or degrading Treatment or Punishment. 

12.In 2007, the Applicant registered an asylum application to the United Nation’s High Commissioner for Refugees, but his case was subsequently closed in 2008. 

13.On 27 July 2012, the Applicant’s torture claim was refused by the Director of Immigration. 

14.In 2013, the Applicant lodged a claim which from 2014 was taken to be a non-refoulement claim (“NRC”).  The NRC was rejected by the Director on 14 September 2018.  The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which later dismissed the appeal/petition on 9 January 2020. 

15.On 6 March 2020, the Applicant commenced HCAL 334/2020, seeking leave to apply for judicial review as regards his NRC.  Those proceedings were subsequently discontinued by Notice of Discontinuance dated 15 December 2022. 

B.3  Family Circumstances

16.The Applicant has been married three times.  On 1 March 2001, he married his first wife, who is of Nepalese origin, in Nepal.  The marriage was dissolved in Nepal on 25 September 2008. 

17.On 28 November 2011, and whilst the Deportation Order remained extant, the Applicant married his second wife, a HKPR of Chinese origin.  That marriage was subsequently dissolved on 15 January 2020. 

18.In the meantime, the Applicant commenced a relationship with a Madam Rai Susmita, who later became his third wife (“3^rd Wife”)  and who is of Nepalese origin.  The Applicant later married the 3^rd Wife, on 19 April 2022.  Shortly before that date, the 3^rd Wife had acquired HKPR status by virtue of paragraph 2(d)  of Schedule 1 to the Ordinance on 11 January 2022. 

19.The Applicant and the 3^rd Wife have four daughters, born respectively on 14 December 2017, 4 October 2019, 23 November 2021 and 1 April 2024.  All four daughters have acquired HKPR status by virtue of paragraph 2(e)  of Schedule 1 to the Ordinance. 

B.4  Requests for Suspension/Rescission of Deportation Order

20.On 12 July 2005, solicitors for the Applicant requested the PS for S to rescind the Deportation Order.  It might be noted that this request was made almost immediately after the Deportation Order was made.

21.On 4 July 2006, the Applicant made a request for rescission of the Deportation Order to the Chief Executive (“CE”)  of the HKSAR.  That request was forwarded to the Security Bureau for consideration.  On 1 September 2006, the Security Bureau informed the Applicant that the PS for S had carefully considered the request, but found no sufficient justification for rescinding the Deportation Order. 

22.On 28 September 2006, the Applicant made a 2^nd request to the PS for S to suspend or rescind the Deportation Order.  That request was rejected on 23 November 2006. 

23.Between December 2006 and May 2007, the Applicant made 5 further requests to suspend or rescind the Deportation Order.  In the absence of any change in circumstances or fresh information, the PS for S considered that there was no basis upon which the PS for S might reconsider the requests. 

24.On 19 January 2012, solicitors for the Applicant made an 8^th request to the PS for S to suspend or rescind the Deportation Order.  The request was rejected on 9 July 2013, again on the basis that the PS for S was not able to find sufficient justification for suspending or rescinding the Deportation Order. 

25.On 30 July 2015, solicitors for the Applicant made a 9^th request to the PS for S to suspend or rescind the Deportation Order.  That request was deferred until the determination of the Applicant’s NRC. 

26.Following the conclusion of the NRC, upon discontinuance of the judicial review application, the 9^th request was considered.  By letter dated 30 August 2023, the Applicant was informed that the PS for S was not able to find sufficient justification for suspending or rescinding the Deportation Order, so that the decision to deport the Applicant still stood. 

27.On 16 November 2023, solicitors for the Applicant made the 10^th request for suspension or rescission of the Deportation Order, reiterated by letter dated 19 July 2024. 

C.  The Impugned Decision

28.The Decision impugned in these proceedings is the PS for S’ refusal of the Applicant’s 10^th request.  The request had enclosed reference letters from the 3^rd Wife, the Applicant’s elder brother and several associations in Hong Kong, in support. 

29.On 2 January 2025, the PS for S refused to suspend or rescind the Deportation Order, as he was not able to find sufficient justification for doing so (i.e. the Decision). 

30.The matters comprising the grounds for the request, and the broad reasoning for the refusal can be found in an internal file minute M.1, which was made available to the Applicant after the Decision, in response to a data access request made by his solicitors. 

31.Minute M.1 at §26 noted the various documents and submissions submitted to support the request, and at §25 canvassed the grounds for the request, as follows:

25.  On 16 November 2023, Mr Chhetri, Madam Rai and Mr Lalit, through Mr Chhetri’s legal representative, had provided their written representations requesting for suspension / rescission of the deportation order [Annex A1 to (4)], and a subsequent letter dated 19 July 2024 sent by Mr Chhetri’s legal representative at (6). The grounds put forth are, in essence, as follows –

(a)  Mr Chhetri has lived in Hong Kong for over 25 years since 1998;

(b)  Mr Chhetri married Madam Rai in April 2022 and they gave birth to three daughters.  Madam Rai and their third daughter were HKPRs while the two elder daughters[1] would also become HKPRs when they satisfy requirements under Article 24 of the Basic Law.  Their fourth daughter[2] was expected to be born in April 2024.  He has substantial connection with Hong Kong;

(c)  Mr Chhetri had already got punishment for his mistakes and he was remorseful for his wrongdoings and now become a responsible husband and father.  Mr Chhetri with his wife and his daughters were living together happily.  He asked for a chance to remain in Hong Kong so that he could accompany his wife to look after and raise their children.  Their daughters were in need of more support from him both emotionally and financially.  The deportation of Mr Chhetri would bring hardship to his marriage and family and it was not easy for the children to meet Mr Chhetri outside Hong Kong.  Mr Chhetri and Madam Rai pleaded for consideration on compassionate and humanitarian grounds for suspension / rescission of the deportation order made against Mr Chhetri;

(d)  Although Mr Chhetri’s family used to rely on social security, the couple were determined to work and had been working to earn their bread and butter.  They would not become a burden of the Hong Kong society;

(e)  Since Mr Chhetri’s release from detention in 2008, he had been continuing to be a law-abiding person and had never committed in any illegal nor improper activities;

(f)  Mr Chhatri’s elder brother, Mr Lalit, was a businessman and always helped Mr Chhetri financially given that the income of Mr Chhetri’s family was insufficient.  Mr Lalit would also guide Mr Chhetri not to repeat his mistakes again.  Mr Lalit asked for giving a second chance to Mr Chhetri to become a good father and civilized citizen so that their family could have a better and easy life in future;

(g)  Mr Chhetri wished to stay in Hong Kong, relying on the Hong Kong Bill of Rights (“HKBORO”), International Covenant on Civil and Political Rights (“ICCPR”), namely the right to family under Article 19 of the HKBORO and Article 23(1)  of the ICCPR, as a substantive right;

(h)  Articles 3 and 9 of the Convention of the Rights of the Child (“CRC”)  was also referred to.  Additionally, the judgment of Mok Chi Hung and another v. the Director of Immigration (HCAL 371/2000)  was cited, claiming that the Hong Kong Special Administrative Region (“HKSAR”)  Government, being a signatory to the CRC, gave rise to the legitimate expectation that the PS for S would act in conformity with the international covenants;

(i)  Mr Chhetri claimed that his friend who was in a similar situation and his friend’s deportation order was suspended and became a HKPR; and

(j)  Mr Chhetri proposed that PS for S could consider suspending the deportation order on a yearly basis over the next seven years to assess if he has indeed turned over a new leaf. 

32.Minute M.1 also recorded the comments from the Commissioner of Police, the Director of Immigration and the Department of Justice, before setting out further matters for the consideration of the PS for S.  As I think has been fairly summarised by Ms Wong in the Initial Response (which summary is the basis of my own below), the reasoning approach was broadly as follows:

(1)  The Deportation Order given to the Applicant was the consequence of his conviction in Hong Kong of a criminal offence of a serious nature leading to an immediate custodial sentence. 

(2)  That demonstrates the lack of respect for the laws and order in Hong Kong, such that his presence poses a genuine threat to the security of Hong Kong.  It will not be in the public interest to allow the Applicant to remain in or come again to Hong Kong. 

(3)  In the absence of any overwhelming factors, there are no extenuating grounds that may warrant suspension or rescission of the Deportation Order at this juncture.

(4)  As a matter of current jurisprudence regarding immigration control, family rights are not absolute in the context of immigration cases.  Because the Applicant is not a HKPR with the right to enter and remain in Hong Kong after making of the Deportation Order, he cannot rely on the claim of family rights by his HKPR family members, except as compassionate or humanitarian factors. 

(5)  It is trite that a deportee is, as a rule, not entitled to expect some finite period to his deportation, or a suspension or rescission of his deportation order.  A deportation order under section 20(1)(a)  of the Ordinance is ordinarily for life, absent special circumstances.  It is not a temporary measure, and it is not like a sentence of imprisonment at the end of which the offender is free to resume his normal life.  Deportation is the consequence of a decision that the immigrant or visitor is no longer welcome in Hong Kong and will not be welcome in Hong Kong in the future. 

(6)  The marriage of the Applicant and the 3^rd Wife took place, and their children were all born, after the making of the Deportation Order.  Being the subject of the Deportation Order, the Applicant should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong.

(7)  While the deportation of the Applicant for life may deprive him of his proximity to his family members in Hong Kong, the Applicant’s family members are nevertheless free to visit or reunite with him elsewhere outside Hong Kong, if they wish to do so. 

(8)  Moving to Nepal to join the Applicant is at most inconvenient, but it is not impossible.  Even if the 3^rd Wife does not choose to reside in a place outside Hong Kong with the Applicant, she and their children are still free to travel abroad to visit the Applicant any time they wish. 

(9)  Being an able-bodied adult of Nepalese origin, the Applicant should not have undue hardship to re-establish himself in Nepal. There is no indication that, as a national of Nepal, the Applicant would be deprived of state protection in the case that his life is put at risk after deportation to Nepal. 

(10)  Each case must be determined based on its own facts and merits, and any comparison with the Applicant’s friend’s case is therefore unhelpful or inappropriate. 

(11)  Having taken into account all the circumstances of the case, it is considered that the grounds put forth in the Applicant’s 10^th request do not sufficiently justify suspension or rescission of the Deportation Order.

D.  The Applicant’s Submissions

33.In his Form 86 – apparently typed with some legal help – the Applicant essentially repeated the submissions made on compassionate and humanitarian reasons (albeit, again, with certain legal provisions and references)  as were made in representations to the PS for S, and recorded in Minute M.1.

34.The Applicant’s oral submissions at the hearing can be summarised as follows:

(1)  The Applicant is a simple man from a simple family background. 

(2)  He made a mistake with friends, many years ago, for which he would like to apologise. 

(3)  The offence committed by him was already more than 20 years ago, and he has not committed any crimes since. 

(4)  Indeed, he has been trying to prove and show everyone that he is a simple person who will not commit further offences. 

(5)  There is a big difference between the man who committed the offence and the older, family man now. 

(6)  He has not been back to Nepal for around 20 years, and does not know much about the situation there. 

(7)  He has lived more than half his life in Hong Kong, and feels that Hong Kong is his home. His father, uncle, brother and sister-in-law all live in Hong Kong. 

(8)  He has his wife and his own young family in Hong Kong, and asks rhetorically how he can leave them.  Whilst they might be able to live for a while without him, for the longer they are apart the greater the difficulties will be. 

(9)  His family is very happy, and enables him to be the good human being he has strived to become. 

(10)  To separate him from his family, which is the effect of the Decision, is the error he seeks to correct in these proceedings. 

35.Against the background and submissions, I can now turn to the merits of the application for leave to apply for judicial review so as to challenge the impugned Decision, and I can deal with each ground in turn. 

E.  The Merits

E.1  Adequacy of Reasons

36.It is correct that, in the Decision letter dated 6 January 2025, the reasons given by the PS for S for refusing either to suspend or rescind the Deportation Order were simply that, having taken into account all the circumstances of the case, the PS for S was not able to find sufficient justification for suspension or rescission, so that the decision to deport the Applicant still stood. 

37.In his Form 86, the Applicant stated that the Decision letter provided no valid reasons why his application was refused, which he said was wrong for reasons including that, unless he knows what grounds or matters have been taken into account and what have not, the Applicant will not know whether there are merits of appeal or grounds to make further representation or even judicial review. 

38.However, the Applicant did not seek to address the fact that he had, on his own data access request, at the very least been provided with Minute M.1 – the contents of which I have traversed above. 

39.The relevant principles in relation to the giving of reasons are well known, and they were summarized by me in Marsini v Director of Immigration [2022] HKCFI 3026 at §92, as follows:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons. 

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case. 

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing. 

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision. 

(5)  The reasons should show that the issues that arise for serious consideration have been considered. 

(6)  But the reasons in any given case may not require great elaboration, and they may be brief. 

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review. 

(8)  The giving of reasons in any individual case must be viewed in the context of that case. 

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles. 

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons. 

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision. 

40.I accept Ms Wong’s submission that, in the immigration context, the PS for S is generally under no duty to give reasons when dealing with an alien’s application to be allowed to come in and/or stay in Hong Kong.  But, I also accept that even if there was a requirement for the giving of reasons, the reasons why the request for suspension or rescission was refused are entirely clear from Minute M.1, subsequently provided to the Applicant upon his data access request.  Indeed, save from the fact that the Applicant is acting in person, it is difficult to understand why the Form 86 in this case continues to make a reasons challenge, or to ask for the reasoning leading to the Decision. 

41.Those reasons given would satisfy any requirement for giving reasons, and must defeat a challenge of procedural unfairness based on the failure to provide reasons. 

42.As the above principles also identify, matters should be looked at in their proper context.  In this case, there is a long history of dealings between the Applicant and the Director of Immigration and the PS for S.  Numerous representations have been made by and on behalf of the Applicant in the course of his many requests for suspension or rescission of the Deportation Order. 

43.With the history and the content of Minute M.1 taken together, it is not reasonably arguable for the Applicant to suggest that he does not know what grounds or matters have been taken into account, and what have not.  No reasonably arguable prejudice has been suffered by the Applicant.

E.2  Alleged Failure to Take Account of Family Circumstances

44.In his Form 86, the Applicant essentially repeats a number of the arguments and representations put forward by him and on his behalf in the context of the previous requests for suspension or rescission of the Deportation Order.  In particular, there is significant repetition of the matters put forward under the 10^th request, the consideration of which led to the impugned Decision. 

45.This all tends to highlight that this ground of intended review is essentially a merits challenge.  However, it is trite that the Court exercising its judicial review jurisdiction does not in general decide the merits of the underlying matter and decision, but instead is concerned with the integrity of the decision-making process.  To point to and to rely on the same arguments as were deployed by the Applicant so as to suggest that those arguments ought to have led to a different decision does not of itself identify any alleged public law errors.  Whilst the Applicant expressly asked me for a ‘last chance’, it is not the Court’s role to decide that point in these proceedings. 

46.In any event, it is settled that a person who has no right to remain in Hong Kong cannot rely on the family rights of his wife and children to establish any right to remain here.  This is so, even if the family members are Hong Kong residents with HKPR status.  In the immigration context, the decision-maker – here the PS for S – is under no duty to have regard to humanitarian and compassionate considerations, even where family ties might be affected. 

47.Where the decision-maker does choose to take into account humanitarian and compassionate considerations, the weight to be attached to any particular consideration in any particular case at any particular point in time is a matter for the decision-maker, and not for the Court – subject only to a public law irrationality challenge. 

48.In this case, the PS for S set out in some detail and did take into account various humanitarian and compassionate considerations, and the weight to be given to them was a matter for the PS for S.  The Decision – after a long line of decisions on previous requests – to refuse to suspend or rescind the Deportation Order was plainly one open to the PS for S to make on the materials.  It is not reasonably arguable to suggest otherwise. 

49.It is, of course, possible to express some sympathy for the Applicant’s family position – and perhaps in particular for the position of his wife and children.  Some may see some force in the Applicant’s suggestion that he has changed over the last nearly two decades, from the much younger man who committed the offence to becoming the older, non-offending, caring and careful family man who makes this application.  That is why the points put forward by and for the Applicant in the 10^th request for suspension or rescission of the Deportation Order, and again in these proceedings, can properly be described as compassionate or humanitarian considerations. 

50.But it is also correct that the Applicant and the 3^rd Wife chose to commence a relationship, to get married, and to have children at a time when the Applicant was subject to a Deportation Order of which he had already sought suspension or rescission on a number of occasions, but without success. 

51.Though each case will turn on its own particular circumstances, and where the weighing exercise is primarily a matter for the decision-maker, it would be unfortunate and wrong if any person who is made the subject of a deportation order – who must necessarily be an illegal immigrant – should form the view that he or she can develop or has developed any real expectation that the deportation order might be suspended or rescinded simply because of the ability to have remained in Hong Kong for many years, and to have formed familial relationships in that period. 

F.  Result

52.Despite his best efforts, the Applicant has failed to identify any public law grounds for review of the Decision with any realistic prospect of success.  In the circumstances, I dismiss the application for leave to apply for judicial review. 

53.However, despite the submission made by Ms Wong on behalf of PS for S that costs should be awarded against the Applicant, I exercise my broad discretion to make no order as to costs.

The applicant, acting in person

Ms Crystal Wong, Government Counsel of the Department of Justice, for the putative respondent and putative interested party