Saeed Ur Rehman v. Secretary for Security
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CACV 36/2025, [2026] HKCA 1926 On Appeal From [2025] HKCFI 265 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 36 OF 2025 (ON APPEAL FROM HCAL NO 1932 OF 2024) ____________
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_________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): 1.This is an appeal against Coleman J’s decision to refuse leave for the applicant to apply for judicial review of the deportation order made by the Permanent Secretary for Security against him on 9 August 2024. The deportation order was made pursuant to s 20(1)(a) of the Immigration Ordinance (Cap 115) (“Ordinance”) on the ground that the applicant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years. 2.The factual and procedural background, mainly taken the decision of the judge, may be stated as follows. The applicant is a Pakistani national born in 1987. He married one Ms Bibi, a Hong Kong permanent resident (“HKPR”), in December 2006 in Pakistan. He was approved to join Ms Bibi as a dependant 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 were subsequently granted, the last one being up to 15 April 2016. 3.The applicant and Ms Bibi have a daughter born in December 2008. Their marriage was however dissolved on 26 February 2016. 4.The Applicant has a further son and daughter with his girlfriend Ms Jameel, born in August 2015 and September 2017 respectively. Ms Jameel and the two children are HKPRs. 5.On 9 March 2015, the applicant was convicted of the offence of ‘possession of a dangerous drug’. On 23 March 2015, he was sentenced to be admitted to Drug Addiction Treatment Centre. 6.On 8 April 2016, the applicant made an application for verification of eligibility for Permanent Identity Card. That application was refused by the Director of Immigration on 7 September 2016, on the ground 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 Treatment Centre broke the continuity of his ordinary residence in Hong Kong immediately before his application for verification of eligibility. 7.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. 8.A removal order was made against the applicant in April 2019 and on 13 July 2019 he was released on recognizance from detention under s 32(3A) of the Ordinance pending removal. Since 11 November 2019, however, he had failed to report on recognizance and went underground. 9.On 30 April 2021, the applicant was convicted of ‘Gambling in a gambling establishment’ and was sentenced to a fine of HK$500. 10.On 12 December 2023, the applicant was convicted again of the same offence and sentenced to a fine of HK$1,000. On the same date, he was re-arrested and detained under s 32(3A). 11.On 10 April 2024, the applicant made a second application for verification of eligibility for Permanent Identity Card. This was rejected on the ground that he had been overstaying in Hong Kong since 16 April 2016, and his imprisonment for his attempted burglary conviction constituted a break in the continuity of his ordinary residence in Hong Kong immediately before the date of the second application. 12.On 23 July 2024, the Applicant was served with a ‘Notice of Consideration of Deportation’, to which he objected on the ground that he wished to take care of his children in Hong Kong. 13.On 26 July 2024, the Director made an application to the Permanent Secretary for a deportation order for life against the applicant, on the ground that his continued presence in Hong Kong was undesirable. Records disclosed by the putative respondents show that Ms Jameel had been contacted by immigration officials (on an earlier notice of consideration of deportation) but she was not willing to provide any comments on the applicant’s deportation. The applicant’s own objections to deportation were taken into account, but the Director considered that the applicant would not have any undue hardship in re-establishing himself in Pakistan, where he was brought up and had lived for years before coming to Hong Kong. The Director had also considered the consequence of separating the applicant from his family members in Hong Kong, but took the view that his family members would be free to visit or reunite with him elsewhere outside Hong Kong if they wished to do so. The Director considered that the attempted burglary offence committed by the applicant was serious in nature, that his repeated commission of criminal offences demonstrated his blatant disregard for the laws of Hong Kong, and that it would not be in the public interest to allow him to remain in or come to Hong Kong again. 14.On 9 August 2024, the deportation order for life was made against the applicant. It was made under s 20(1)(a) of the Ordinance, by the Permanent Secretary for Security under delegated power, on the ground 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. 15.On 28 October 2024, the applicant filed a Form 86 seeking leave to apply for judicial review of the deportation order. The grounds for the application were set out in a 5-page exhibit marked ‘B’ to his supporting affirmation. The judge, correctly in our view, identified the grounds as follows: (1) there will be hardship caused if the applicant is deported, because he has three children who are HKPRs; (2) he has an outstanding appeal to the Registration of Persons Tribunal against the refusal by the Commissioner of Registration of the applicant’s application for a Hong Kong Permanent Identity Card. 16.As to the first ground, the judge found no basis to infer that the Permanent Secretary or the Director did not take potential hardship to the applicant and his family into consideration, and found that internal documents show that the applicant’s representations were actually taken into account. The judge also stated that it is settled that the Permanent Secretary or Director 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 Permanent Secretary or Director, subject only to potential intervention by the court on the basis of irrationality. The judge could see no arguable basis to suggest the decision to make the deportation order was irrational. 17.As to the second ground, the judge considered that the applicant’s extant appeal to the Registration of Persons Tribunal was not a legal impediment to removal. The applicant could continue with his appeal, without being present in Hong Kong. The judge also considered the appeal to have little or no merit given that the applicant had failed twice in applying for verification of eligibility for Permanent Identity Card. The applicant’s intended judicial review of the first rejection was dismissed, and there was no attempt to challenge the second rejection. 18.In the notice of appeal for the present appeal, the applicant sets out two grounds. First, he says the judge wrongly failed to take into consideration the fact that he had completed over seven years’ ordinary residence in Hong Kong (from 22 May 2007 to 8 March 2015) before being convicted of any crime and that on the strength of that period of residence he was eligible for HKPR status. Secondly, the applicant contends that the judge should have held that there was procedural impropriety in the decision of the Permanent Secretary and Director because they did not take into account the applicant’s more than seven years’ ordinary residence in Hong Kong from 22 May 2007 to 8 March 2015. 19.Both grounds turn on the applicant’s claim that he was eligible for HKPR status by reason of his ordinary residence in Hong Kong from 22 May 2007 to 8 March 2015. The applicant did mention in exhibit ‘B’ to his supporting affirmation that by 2014 he had completed seven years’ residence, though he did not make it clear this was an intended ground for judicial review. For this reason we are prepared to consider this point even though it was not clearly put forward as a ground for the application for leave for judicial review before the judge. 20.Paragraph 2 of Schedule 1 to the Ordinance provides:
21.It is true that the period from the applicant’s entry into Hong Kong (22 May 2007) up to his conviction for possession of a dangerous drug (8 March 2015) exceeded seven years, and there was nothing to suggest that he was not living in Hong Kong during that period. But paragraph 1(4) of Schedule 1 provides:
22.Further, paragraph 3(2) of Schedule 1 provides:
23.The applicant made two applications to the Director for verification of eligibility for Permanent Identity Card, first on 8 April 2016, and again on 10 April 2024. During his detention in the Drug Addiction Treatment Centre in 2015 and his imprisonment between 2017 and 2019, and at any time after his visa expired on 15 April 2016, he was not treated as ordinarily resident in Hong Kong by virtue of s 2(4) of the Ordinance, which provides:
24.Under these provisions, the applicant clearly cannot rely on his residence in Hong Kong from 22 May 2007 to 8 March 2015 to claim HKPR status, as that was not a period immediately before the date when he applied to the Director for such status. Nor can the applicant claim to be a HKPR since his applications for such status were rejected. These are provisions of law that the Permanent Secretary and the Director have to apply. We do not see any ground to suggest that the Permanent Secretary or the Director acted with procedural impropriety, or indeed with any impropriety, in not specifically taking that prior period of residence into account or in not treating the applicant as a HKPR. Nor do we see any error in the judge’s decision in that regard. 25.For these reasons, the applicant’s appeal must be dismissed. We make no order on costs.
The Applicant, unrepresented, acting in person | ||||||||||||||||||||||||||
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