Kamran Javid v. Permanent Secretary for Security

CACV 250/2023, [2025] HKCA 731

On Appeal From [2023] HKCFI 1944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 250 OF 2023

(ON APPEAL FROM HCAL NO 592 OF 2023)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A.  INTRODUCTION

1.The applicant is subject to a deportation order for life dated 30 May 2000 (“the Deportation Order”). In the proceedings below, he applied for leave to apply for judicial review to challenge the Permanent Secretary for Security (“the PS”)’s decisions respectively made on 20 January 2023 and 27 March 2023, refusing his request to have the Deportation Order rescinded or suspended (respectively “the 1^st Decision” and “the 2^nd Decision”, and collectively “the Decisions”).  It is also the applicant’s case that he had in the request alternatively asked the PS to have the Deportation Order shortened for a specified period of time, but she had failed to consider it.

2.After a rolled-up hearing of the application[1], Coleman J (“the Judge”) by an order dated 31 July 2023 (“the Order”) (a) refused to grant leave to the applicant to apply for judicial review (in part) and (b) dismissed the applicant’s application for judicial review (for the part in respect of which leave was granted).  The Judge explained his reasons for the Order in his written judgment of the same date (“the Reasoned Judgment”)[2].

3.This is the applicant’s appeal against the Order.

B.  BACKGROUND

4.The background facts leading to this appeal were set out in detail by the Judge at [6] ‑ [28] of the Reasoned Judgment. We would gratefully adopt them and only highlight the following which are pertinent to this appeal.

5.The applicant is a national of the Islamic Republic of Pakistan.  He entered Hong Kong under the name of “Ahmed Kamran” on 9 March 1998 and overstayed.  The Deportation Order was made against him by the PS by reason of his various criminal convictions[3], and he was later deported to Pakistan on 8 June 2000.

6.He later married a Hong Kong resident, Ms Mak (“the First Wife”) in Pakistan on 24 September 2001.

7.In October 2001, he re-entered Hong Kong under a different name (his current name), which was not immediately detected by the Immigration Department.  In April 2002, the applicant was granted permission to remain as a dependant of the First Wife, which was extended to April 2006.  In the meantime, he was convicted of various offences in 2004 and was imprisoned[4].  He made a torture claim in 2007 which was later withdrawn in 2012.

8.The applicant and the First Wife have three children who were born respectively in 2009, 2011 and 2013 in Hong Kong.  From 2012 to 2018, upon the applicant and the First Wife’s yearly requests, the PS had agreed to suspend (but refused to rescind) the Deportation Order on a yearly basis.  Each time when the one-year suspension was granted, the PS made it clear that it was granted solely on exceptional compassionate grounds, after taking into account all the relevant factors at that time, which included his strong family connections in Hong Kong, the best interest of his young children and the fact that he had since been a law-abiding citizen.

9.The last suspension of the Deportation Order was granted by the PS on 23 February 2017.

10.In January 2018, when he again made his request for the suspension or rescission of the Deportation Order, the applicant disclosed for the first time the fact that he had married a Ms Sajid (“the Second Wife”) in Pakistan in June 2016[5], and had a daughter born out of this marriage in January 2017 in the Philippines.

11.In dealing with this suspension/rescission request, and following up on the information about this second marriage (“the Second Marriage”), the Director of Immigration (“the Director”) further found out that the applicant had been staying outside Hong Kong for significant periods in the preceding two years.[6]

12.On 28 March 2018, the PS rejected the applicant’s said request for suspension/rescission of the Deportation Order as, having taken into account all the circumstances, including the applicant’s polygamous family situation as a “recent major circumstantial change”, she was not satisfied that there were compelling compassionate grounds to justify its suspension.

13.Thereafter, the applicant again repeatedly requested for suspension/rescission of the Deportation Order between February 2019 and May 2020, which requests were refused by the PS on 3 August 2020.  His application for leave to apply for judicial review against this decision was refused by Keith Yeung J in March 2021[7] and the appeal therefrom was dismissed by this court (Barma and Au JJA)[8].

14.On 2 July 2021, the applicant divorced the Second Wife (“the Divorce”).

15.After the Divorce, the applicant again requested the PS to suspend/rescind the Deportation Order through various written representations made between April 2021 and February 2022[9] (“the Request”).  It is also the applicant’s case that he had in this written representations alternatively asked the PS to “make” the deportation order “for a limited time”.

16.In support of the Request, he submitted in substance that given the Divorce, his personal circumstances had been “reverted” back to materially the same, if not more compelling, as those before the Second Marriage.  It would therefore be in his children’s best interest (as before) to grant him a suspension/rescission of the Deportation Order.  He said this was further supported by the fact the Hong Kong Police had expressed gratitude and welcomed his assistance in various police operations.

17.By a memorandum dated 13 June 2022, the Director recommended to the Security Bureau that the Request be refused.  In making the said recommendation, the Director had taken into account all the circumstances of the applicant, including his previous criminal convictions, the Divorce and his Hong Kong family ties.

18.After receiving the Director’s recommendation, the Security Bureau in an internal minute M1 dated 18 January 2023 (“M1”) also recommended to the PS that the Request be rejected as the grounds put forth by the applicant did not justify the suspension of the Deportation Order.  The relevant considerations in M1 were stated as follows:

“Comments from the Commissioner of Police

23. The Commissioner of Police has been previously consulted. He was of the view that there were no grounds for supporting the request for suspension/rescission of the deportation order made against Mr Javid [Annex F to (33)]. ImmD advised that further comments from the Police was sought again regarding the further written submissions received from Mr Javid in August 2022. The Police further confirmed that their view on the above request for suspension / rescission of the deportation order still maintained, i.e. no grounds to support the said request at (48).

Comments from the Director of Immigration

24. The deportation order against Mr Javid was made on the basis of his criminal convictions of serious offences in Hong Kong. Records also revealed that Mr Javid is a serious and repeated offender who shows no respect to the laws of Hong Kong. As a returned deportee, he was convicted of the offences of ‘Trafficking in a dangerous drug I dangerous drugs’, ‘Dealing with property known or believed to represent the proceeds of an indictable offence’ and ‘Breach of deportation order’, for which heavy sentences were imposed by the Court. Being a subject of deportation order, Mr Javid should not have any expectation that the prohibition of his stay in Hong Kong would be lifted to enable him to lead a normal life in Hong Kong. The Director is of the view that Mr Javid’s Hong Kong family members are free to travel outside Hong Kong to reunite with him if they wish to do so.

25. While Mr Javid’s deportation order was first suspended in 2012, he solemnized his second marriage with [the Second Wife] in Pakistan in June 2016 and their daughter was born in January-2017 in the Philippines in their wedlock. Upon Mr Javid’s request for suspension / rescission of the deportation order in December 2016, he did not disclose his matrimonial relationship with [the Second Wife]. Mr Javid’s deportation order was subsequently suspended for one year in February 2017. Following the refusals of Mr Javid’s request for suspension/ rescission of the deportation order in 2018 and 2020, he divorced [the Second Wife] in July 2021. The Director is of the view that Mr Javid’s bona fides are not satisfied.

26. After consideration of all circumstances of the case, the Director cannot find any overwhelming factors which may warrant the suspension / rescission of the deportation order made against Mr Javid and therefore the Director recommends that the request for suspension / rescission of the deportation order be rejected. In any event, it is not duty bound to take into account any local family connection in exercising discretion to suspend / rescind a deportation order.

…

Decision sought

30. The deportation of Mr Javid was the consequence of his criminal convictions in Hong Kong. In the absence of any overwhelming factors, there is no extenuating grounds that may warrant suspension / rescission of the deportation order at this juncture.

31. According to the current jurisprudence regarding immigration control, family rights are not absolute in the context of immigration cases. Mr Javid, not being a HKPR or a person with the right to enter or remain in Hong Kong after making of the deportation order, cannot rely on the claim of family right by his family members or himself to justify a request for suspension / rescission of the deportation order.

32. Although the deportation against Mr Javid had been previously suspended by the then PS for S for a few times, there was no indication that the deportation order would be further suspended upon fresh applications for suspension / rescission were received. Mr Javid should not have any expectation that the deportation order would be suspended again and the prohibition of his stay in Hong Kong would be lifted easily.

33. That said, the deportation order against Mr Javid, if enforced, only prevents him from coming to Hong Kong again. It would not deprive him of his freedom to stay with [the First Wife] and take care of their three children in any places outside Hong Kong if they wish to do so. Even if [the First Wife] does not choose to reside in a place outside Hong Kong with Mr Javid, she and their children are still free to travel abroad to visit Mr Javid any time they wish.

34.  Having considered all circumstances of the case, it is considered that the grounds put forth in the present request do not sufficiently justify suspension / rescission of the deportation order made against Mr Javid.  It is recommended that the request for rescission of the deportation order made against Mr Javid be rejected and the suspension of deportation order should not be considered.” (Emphases added)]

19.By a letter dated 20 January 2023, the PS informed the applicant that she had decided to reject the Request as she was not satisfied that there were sufficient justifications for suspending and rescinding the Deportation Order, and further stated that “the decision to deport [the applicant] from Hong Kong for life still stands” (ie, the 1^st Decision).

20.In response to the 1^st Decision, by a letter dated 21 February 2023, the applicant’s solicitors referred to the 1^st Decision and, among others, contended that the PS had fettered her discretion in failing to consider and address the applicant’s alternative request to shorten the time of the Deportation Order.

21.By way of the 2^nd Decision contained in a letter dated 27 March 2023 to the applicant’s solicitors, the PS reiterated that the Deportation Order was prima facie for life, and having considered all the circumstances of the applicant’s case, there were no strong and exceptional circumstances to warrant the suspension or rescission of the Deportation Order.

22.On 18 April 2023, the applicant applied for leave to judicially review the Decisions.  He advanced three intended grounds of review:

(1)  The Decisions were unlawful as the PS failed to take into account various relevant considerations in making the Decisions, eg, the Divorce (“JR Ground 1”);

(2)  Given that, after the Divorce, the applicant’s personal circumstances had been reverted back to the same as those before the Second Marriage, the Decisions were irrational or perverse as they were inconsistent with all the PS’s previous decisions (“the Previous Decisions”) made before the Second Marriage to suspend the Deportation Order on exceptional compassionate grounds (“JR Ground 2”); and

(3)  The 2^nd Decision was unlawful as the PS had fettered her discretion in failing to consider the applicant’s alternative request to shorten the period of the Deportation Order (“JR Ground 3”).

23.On 14 June 2023, the Director by way of an internal minute M2 (“M2”) sought the PS’s confirmation to refuse the applicant’s request to shorten the period of the Deportation Order.  The PS indicated his confirmation on M2.

C.  THE REASONED JUDGMENT

24.By way of the Reasoned Judgment, the Judge dismissed the applicant’s application.

25.Relevant to this appeal, for the following reasons, the Judge refused to grant leave to the applicant under JR Grounds 1 and 2:

(1)  In relation to JR Ground 1, the Judge found that, reading M1 as a whole, the PS had plainly already taken into account all the matters relied on by the applicant (including the Divorce) when considering whether there were compelling compassionate and humanitarian grounds to support the Request: see [51] ‑ [61] of the Reasoned Judgment.

(2)  In relation to JR Ground 2, the Judge held that the Decisions were not arguably irrational:

(a)  This ground was essentially a complaint that the 1^st and/or 2^nd Decisions were irrational as they were inconsistent with the Previous Decisions to suspend the Deportation Order based on materially the same set of factual circumstances of the applicant.

(b)  In this respect, most of the authorities relating a challenge against inconsistent decision are usually concerned with two different persons making similar applications based on similar facts.  However, the present case was different as it involved the same person making similar applications on facts which have some similarities but could well have changed over time.

(c)  The Judge then further held that, given the passage of time, the relevant circumstances of the applicant (in particular the respective ages of his children) were simply not the same as before, and the PS in the exercise of her wide discretion, was fully entitled to consider the factors afresh at the time of the Request, and formed the view that there were no sufficient exceptional compassionate circumstances to justify suspending or rescinding the Deportation Order.  The Decisions were plainly not irrational.

See [62] ‑ [79] of the Reasoned Judgment.

26.In relation to JR Ground 3, the Judge granted leave to apply for judicial review, but dismissed it substantively for the following reasons:

(1)  On the facts of the present case, any request to “shorten” the period of the Deportation Order was in reality a request to suspend or rescind it after such other period.  Thus, when the PS refused to suspend or rescind the Deportation Order whether immediately or at some future period in the 2^nd  Decision, she had also addressed and rejected the said request.  See [80] ‑ [92] of the Reasoned Judgment[10].

(2)  In any event, even if the PS had not dealt with this request in the 2^nd Decision, it would be futile to remit it back to the PS for reconsideration as M2 showed that she would arrive at the same decision to refuse it.  See [93] ‑ [96] of the Reasoned Judgment.

D.  THIS APPEAL

D1.  Grounds of Appeal

27.In this appeal, the applicant seeks to challenge only the Judge’s dismissal of JR Grounds 2 and 3.  He has advanced three grounds of appeal in the Notice of Appeal, which are in gist as follows:

(1)  In relation to JR Ground 2:

(a)  The Judge erred in law at [65] of the Reasoned Judgment in confining the requirement for consistent treatment in public decision-making to situations where “two different persons make similar applications on similar facts” when the principle is not so confined (“Ground 1”);

(b)  The Judge erred in his finding at [70] ‑ [71] of the Reasoned Judgment that there was a material change of the applicant’s personal circumstances due to the passage of time as it was not supported by any evidence (“Ground 2”); and

(2)  In relation to JR Ground 3, the Judge also erred in finding at [91] ‑ [92] of the Reasoned Judgment that the PS had in the 2^nd Decision considered the applicant’s request to shorten the period of the Deportation Order as it was not supported by the evidence.  (“Ground 3”)

28.Further, by a Summons dated 23 February 2024 (“the Summons”), the applicant also sought leave to file and rely on his affirmation dated 22 February 2024 (“the Applicant’s Affirmation”) in this appeal.  We directed at the hearing that we would consider the Applicant’s Affirmation on a de bene esse basis.  We will deal with the Summons later in this judgment.

D2.  Analysis

D2.1  Grounds 1 and 2

29.Grounds 1 and 2 are both related to JR Ground 2.  However, as it will become clear later, if Ground 2 fails, Ground 1 is irrelevant to this appeal.  We will therefore first consider Ground 2.

30.Ground 2 is primarily to challenge the Judge’s holding that the applicant’s personal circumstances in support of the Request (in particular in relation to the respective ages of the children) were plainly not the same as those before the Second Marriage, and it was not irrational for the PS to make the Decisions after considering these factors.

31.The Judge explained the reasons for this holding at [68] ‑ [73] of the Reasoned Judgment as follows:

“68. I disagree. It seems to me that the entire argument on the alleged inconsistency is actually based upon a false premise, namely that the circumstances identified and put forward at the time of the request for re-suspension of the Deportation Order are really materially the same as (consistent with) the circumstances leading to the previous suspension decisions. They were not. Focusing on the Applicant’s marital status – and the return to having only one ‘family’ – also overlooks the other matters which properly felt to be taken into account.

69. Although the Applicant says that the decision-maker did not find otherwise than that the personal circumstances of the Applicant are materially the same as those that obtained during the prior periods of suspension, nor did the decision-maker that the personal circumstances were materially the same. As I say, they were not.

70. This is not least because of the effluxion of time between 2017 and 2022. The Applicant’s argument essentially requires pretending that either (a) no time has actually passed, and/or (b) nothing has happened in the time which has actually passed. This is simply unrealistic. Indeed, the Applicant himself expressly relies on events which have happened in the relevant intervening period, in his case in particular the Divorce and his continuing close relationship with Ms Mak. But, that there was the Divorce does not mean that there was no second marriage. Nor does it mean that the views taken of the Applicant’s behaviour in that period falls simply to be completely ignored. Nor does it mean that time has stood still. To put it another way, the Divorce did not turn the clock back, nor send him back to square one.

71. It is a fact that the passage of time means, for example, that the children have become older. Whilst the earlier considerations expressly referred to the children as being of tender age, they can rightly be described or thought of as no longer of tender age. By early 2022, they were aged 12, 10, and 8 respectively; and by the time of the 1^st Decision on 20 January 2023, they were a further year older. Those facts are apparent on the face of M.1 as matters taken into account.

72. Stepping back, it would be seen that the Applicant’s argument essentially amounts to suggesting that because the Deportation Order was previously suspended, primarily because it was thought to be in the best interests of his children at the time, it must always continue to be suspended (presumably, at least until the children are no longer children), or until the circumstances pointing towards a suspension on compassionate grounds have somehow weakened. That is contrary to the recognition that there can be no claim in this case to any legitimate expectation of continuing suspension or re-suspension.

73. Further, as Ms Cheung [for the PS] submitted, unless the Deportation Order is rescinded, there will likely come some point in time when it would be effected. As she put it more baldly, the PS for S might form the view at some point in time that ‘enough is enough’. Continued suspension without an obvious end point might be thought tantamount in effect to rescission. But in this case, the requests for rescission have always been refused (and there is no challenge in that regard), and I think it can be said there is every indication that a decision to rescind the Deportation Order looks at least unlikely, at least at present.” (emphasis added)

32.Mr Dykes SC for the applicant contends that the Judge erred in his above reasons and conclusion because:

(1)  There is no evidential basis for the Judge to find that the PS had taken into account the children’s ages or that they were “no longer of tender age” as a material change of circumstance in rejecting the Request.  There were simply no such findings mentioned in the internal minutes or the PS’s affirmations.  These were therefore merely the Judge’s own speculations, and he had erred in taking them into account in upholding the Decisions.

(2)  Quite to the contrary, given the Divorce, the applicant’s relevant circumstances that were in fact taken into account by the PS were reverted to the same as those prior to his Second Marriage.  In other words, the compassionate considerations underlying the Request were therefore the same as those underlying the Previous Decisions.

(3)  In the premises, applying the requirement in public law for consistency in decision-making based on similar facts, the PS ought to have also approved the Request and suspended the Deportation Order.  It was therefore irrational for the PS to have rejected the Request by the Decisions.

33.With respect, for the following reasons, the above submissions are flawed.

34.First, it is trite that the PS has no legal obligation to consider compassionate and humanitarian grounds in considering whether to rescind or suspend a deportation order.  However, if she does consider these grounds, subject to the challenge of any procedural unfairness, the court would not lightly interfere with her decision on irrationality/Wednesbury unreasonableness basis as the court must have regard to her wide discretion under this aspect and the context of whether the applicant merits exceptional treatment against a stringent overall immigration control policy.  This is a very high hurdle to meet.  See Sabir Mohammed v Permanent Secretary for Security (HCAL 114/2015, 27 January 2017, Au J) at 44, applying BI v Director of Immigration [2016] 2 HKLRD 520 (CA) at [103] ‑ [111].

35.Second, the burden is on the applicant to satisfy on each rescission/suspension request that there exist sufficient exceptional compassionate and humanitarian circumstances to justify the PS to so suspend or rescind the Deportation Order.  Each request is to be considered afresh based on the information before the PS at the time when it is made.  In this respect, Mr Dykes in his usual fairness has also rightly accepted that, notwithstanding the Previous Decisions, the applicant does not have any legitimate expectation to be granted with the suspension/rescission of the Deportation Order.

36.Thus, at the time when the Request was made:

(1)  The applicant had to show and satisfy the PS for fresh consideration that there were compelling factors showing exceptional compassionate and/or humanitarian circumstances which warranted the suspension or rescission of the Deportation Order.  This was a fresh and independent consideration of all the relevant factors by the PS.

(2)  In this respect, it is plain that the ages of the applicant’s children must be a relevant factor as to whether they were of such young or tender age that would attract sufficient compassionate consideration to justify allowing the applicant to stay in Hong Kong despite the Deportation Order.  The unchallenged evidence clearly shows that, as a matter of fact, whether the applicant’s children were of such “young ages” or “tender ages” had always been a factor which were taken into account by the PS in considering whether or not to grant suspension/rescission of the Deportation Order on exceptional compassionate ground[11].

(3)  Further, as a matter of common sense and logic, the older the children have become, the less the age factor would support the existence of exceptional compassionate circumstances to justify the suspension of the Deportation Order.

(4)  In the circumstances, it is also plain that when considering the Request, the PS must have also considered the ages of the children as a relevant factor to decide whether there were exceptional and compelling compassionate circumstances to justify the suspension of the Deportation Order.  As noted by the Judge, the children’s ages at the time of the Request, being respectively 13, 11 and 9, were expressly referred to at paragraph 9 of M1 submitted for the PS’s consideration.  These ages of the children were objectively and plainly different from the ones underlying the times when the Previous Decisions were made (the last one being made in 2017).

37.In the premises, the contention that, because of the Divorce, all the relevant circumstances that the PS had taken into account had been reverted back to the same as those when the Previous Decisions were made is simply wrong and incorrect as a matter of objective fact and logic.  The Judge’s observations at [68] ‑ [72] are plainly correct, which are well supported by the evidence and logic.  They are not “speculations” as contended by the applicant.

38.Once this fundamental basis of Mr Dykes’ submissions is gone, counsel’s contention that the 1^st and 2^nd Decisions are irrational as being “inconsistent” also falls away.

39.Further and in any event:

(1)  How much weight should the PS place on this age factor in assessing whether sufficient exceptional humanitarian and compassionate circumstances were made out is entirely a matter for her.

(2)  In this respect, the PS after taking into account all the relevant factors into consideration, including the material ages of the children at the time of the Request, and given the wide margin of discretion accorded to her, it plainly cannot be said to be irrational for her to decide that there were no sufficient exceptional compassionate circumstances to support suspending the Deportation Order this time.

40.For completeness, we note that Mr Dykes has also submitted at paragraph 19 of his skeleton submissions that “the learned judge also acknowledged that the [PS] did not find otherwise other than that the personal circumstances of the applicant were materially the same as those that existed during the suspension period”.  This is a misreading of the Reasoned Judgment.  The Judge was only stating the applicant’s argument at [69] of the Reasoned Judgment, before indicating his disagreement with it.

41.For the above reasons, Ground 2 must fail.

42.In the premises, it is unnecessary to deal with Ground 1 as, in the absence of an underlying factual similarity, whether or not the Judge had erred in law as alleged by restricting the requirement for consistency in public decision-making only to situations where “two different persons make similar applications on similar facts” becomes irrelevant.

43.In any event, Ground 1 has no merit and for completeness, we will deal with it briefly below.

44.Under this ground, Mr Dykes argues that the Judge was wrong in law at [64] ‑ [65] of the Reasoned Judgment to “restrict” the consistency requirement only to situations where there are “two different persons make similar applications on similar facts”, as the relevant authorities[12] support that this principle applies equally to situations where the same person makes similar applications relying on the existence of materially the same facts.

45.With respect, this complaint is unjustified and is based on a misreading of the Reasoned Judgment.

46.The relevant parts of the Reasoned Judgment on this issue read as follows:

“64. As already identified, the main thrust of the intended challenge relates to the criticism of a failure to be consistent. In this regard, it is necessary to dispel any misconception as to the status of matters of consistency in public law. Though Ms Cheung thought Mr Parker might have gone further, I think it is clear (and Mr Parker confirmed in his reply submissions) that his submission is not that inconsistency is itself a ground of judicial review, but rather that it is part of – or, as he put it, a species of – irrationality. Inconsistency is the symptom and irrationality is the disease, because a rational decision-maker would make two consistent decisions when faced with two consistent sets of circumstances, or at least would not make inconsistent decisions without a good explanation being given.

65. But, most of the authorities dealing with the question of consistency are dealing with a situation where two different persons make similar applications on similar facts, where it would be expected that they would be treated in a consistent manner. In those circumstances, it is clear that consistent dealing is at least desirable, so far as possible. Absent that, some unfairness in treatment between individuals may be identified. However, this case is rather different. It involves the same person making similar applications on facts which may have some similarities, but which could well have changed (and in fact have changed) as a result of the effluxion of time and the events which have occurred during that effluxion of time.” (emphases added)

47.Properly read, the Judge did not restrict the principle of consistency to only where there are two different persons making similar applications on similar facts, but only observed that most of the authorities on the issue involved such a scenario.  The Judge then went on to state that in any event, the present case did not involve similar factual circumstances as contended by the applicant.

48.Ground 1 must therefore also fail.

D2.2  Ground 3

49.This ground relates to the Judge’s observations made at [89] ‑ [92] of the Reasoned Judgment in support of his conclusion that the PS in the 2^nd Decision had dealt with the applicant’s request to shorten the period of the Deportation Order.  These parts of the Reasoned Judgment state as follows:

“89. I think it is important to view the response in the context of the original request, first made by the Applicant’s letter dated 7 April 2021, which request was referred to and repeated in the Applicant’s solicitors’ letter dated 21 February 2023 (see above). As it was put in the Applicant’s original letter, the request was as follows:

• I request you humbly to remove my lifetime deportation and suspend/rescind my deportation on urgent basis OR

• I request you to at least make my deportation for a limited period e.g. for 6 months or one year (or as DOI/SOS seems ok) and suspend/rescind my deportation order on urgent basis due to the following reasons: …

90. The Applicant was requesting the PS for S to suspend or rescind the Deportation order immediately, and if not immediately then at some point in the relatively near future. On that basis, the request to ‘shorten’ the Deportation Order was in reality simply that: (1) a request made as an alternative to the request to suspend/rescind it immediately; and (2) was a request to suspend/rescind it at some future point of time, if not immediately.

91. This makes logical sense. Any request to ‘shorten’ the effectiveness of the period of the Deportation Order is indeed in reality a request to suspend or rescind it, not immediately but after such other period as is suggested or the PS for S thinks fit.

92. Therefore, though I accept it was not as clear as it might have been, I think that the 2^nd Decision did actually address the request. The author of the letter stated that the Deportation Order was (as is typical) one for life, and not one for a fixed – or shorter – period after which the Applicant might return to a normal life, like a person who has completed a prison sentence after conviction of crime. It was stated that having carefully considered the circumstances the PS for S did not think there were grounds at that time to suspend or rescind the Deportation order. Logically in context, the PS for S was identifying that he was declining to suspend or rescind the Deportation Order at all, whether immediately or at some suggested future period in 6 or 12 months’ time.” (Emphases added)

50.Mr Dykes argues that there is no evidential basis for the Judge to come to this finding, as the PS “has never indicated in his submissions, affirmations, and evidence that he characterised the applicant’s request to shorten the period of the Deportation Order as a request to rescind, namely a request to rescind at some future point in time”.

51.We disagree.

52.In our view, the Judge was correct to hold that, in refusing to suspend the Deportation Order, the PS had also effectively or in substance dealt with the request to shorten the period of the Deportation Order:

(1)  The Deportation Order is for life.

(2)  A request to “shorten” it is effectively asking to have it terminated within a period of time.  This is an even better result for the applicant than to have the Deportation Order suspended.

(3)  In the premises, if the PS has refused to suspend or rescind the Deportation Order (which is for life), implied in the decision must be that she has also refused to shorten it.

53.Moreover, and in any event, the Judge is also correct to observe at [96] of the Reasoned Judgment that it would be futile and thus academic to remit the matter back to the PS to reconsider the applicant’s request to shorten the period of the Deportation Order, as M2 shows that the PS is bound to reach the decision to refuse such an request[13].  In other words, he would not exercise the discretion to grant any relief to the applicant even if the complaint under JR Ground 3 was established.  This conclusion is unassailable.

54.Ground 3 thus also fails.

D2.3  The Summons

55.By way of the Summons, the applicant sought leave to rely on the Applicant’s Affirmation[14] in this appeal.  In the affirmation, the applicant mainly sought to give an account as to how his intended expression of “shame divorce” in his letter dated 9 August 2023 to the Judge in dealing with costs had been wrongly transcribed to “sham divorce” by his friend.

56.This matter concerns with the postscript remarks made by the Judge in the Costs Ruling dated 2 February 2024 (“the Costs Ruling”)[15] at [17] ‑ [23] as follows:

“D. Postscript

17. I cannot end this Costs Ruling without mentioning one other point, albeit that I have chosen not to take it into account in the discretionary costs exercise above.

18. In his letter dated 9 August 2023, as part of the description of his family circumstances (see above), the Applicant wrote, ‘I divorced my second wife (Sham divorce)’.

19. Unsurprisingly, Ms Cheung [for the PS] drew attention to that, and placed some weight on it in her submissions. As she stated, the idea that the Applicant’s divorcing the second wife was a ‘sham’ was the very opposite to the factual position which the Applicant was urging on the Court, and went to the heart of his case on Grounds 1 and 2 – namely that his divorce was genuine, so that he was therefore in materially the same circumstances as before his second marriage.

20. Ms Cheung pointed out that, if established, such misleading of the Court (and the PS for S) is serious, potentially criminal, and calls into question the propriety of the conduct of the Applicant and those who represented him, particularly in the context of an ex parte leave application where an applicant bears the duty of full and frank disclosure.

21. Insofar as Ms Cheung has suggested that the point calls into question the propriety of those representing the Applicant, I do not think that suggestion is well-founded, where those who represented him would do so on instructions and there is no basis for thinking that the representatives knew the assertion that the divorce was genuine was in any way false. I expressly reject the suggestion.

22. However, as regards the Applicant himself, if the Applicant was indeed saying that the divorce of his second wife was a sham – as his chosen wording seems clearly to identify – that would indeed be a serious matter. I note that the Applicant has made no response to Ms Cheung’s submissions in this regard, notwithstanding that he filed his reply submissions expressly ‘to answer … the putative respondent made serious allegations on applicant’. The Applicant has not sought to explain that his reference to a ‘sham divorce’ has a different meaning.

23. On the face of it, therefore, the Applicant has inadvertently revealed that a main factual plank of his application was based on an untruth supposedly verified in his evidence. Ultimately, I acknowledge, that may or may not be correct. But, in circumstances, I am referring the papers to the Director of Public Prosecutions.” (emphasis added)

57.It is plain that the Applicant’s Affirmation is entirely irrelevant to this appeal:

(1)  The Judge’s above observations in the postscript have nothing to do with the Order which the applicant seeks to challenge by way of this appeal.  The letter, drafted subsequent to the handing down of the Reasoned Judgment, was to address the court on the question of costs.

(2)  Further, the applicant has not sought to appeal the Costs Ruling itself, and in any event, as stated at [17] of the Costs Ruling, the Judge did not take into account the letter dated 9  August 2023 when exercising his discretion in determining costs.

(3)  As to the applicant’s submission that the Judge’s observation, if uncorrected, may lead to potential criminal investigations against him, that is a matter outside the scope of the present appeal, and it is also not the function of this court in this appeal to investigate or make any factual finding as to whether the Divorce was a sham or otherwise.

E.  DISPOSITION

58.For the above reasons, we dismiss the appeal and the Summons.

59.As to costs, the parties have agreed that it should follow the event.  Accordingly, we order that costs of the appeal and the Summons be to the PS, to be summarily assessed.  In this respect, we note that the PS has already filed a Statement of Costs for the Appeal dated 16 February 2024 (“the Appeal Statement of Costs”).  For the purpose of the summary assessment, we would further direct as follows:

(1)  The PS do file and serve a Statement of Costs for the Summons (“the Summons Statement of Costs”) within seven days hereof;

(2)  The applicant do file and serve a combined Statement of Opposition (not more than two pages) to the Appeal and Summons Statements of Costs within seven days thereafter; and

(3)  Unless otherwise directed, the court will thereafter assess the costs on papers.