Sakthevel Prabakar v. Secretary for Security

HCAL002078/2000

HCAL2078/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2078 OF 2000

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Coram: Hon Hartmann J in Court

Dates of Hearing: 7, 8, 9 May, 1 and 15 June 2001

Date of Handing Down Judgment: 20 September 2001

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J U D G M E N T

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Introduction

1.The applicant in this matter, who is a native of Sri Lanka and a member of its Tamil minority, seeks orders of certiorari to bring up and quash two decisions of the Secretary for Security, the respondent. Both decisions concern an order made in terms of section 20(1)(a) of the Immigration Ordinance, Cap. 115 ('the Ordinance') for the deportation of the applicant and his prohibition from ever returning to Hong Kong.

2.Section 20(1)(a) of the Ordinance empowers the Chief Executive (and the respondent acting under his delegated authority) to make a deportation order against a person who is not a Hong Kong permanent resident and who has been found guilty of an offence punishable with imprisonment for not less than two years.

3.It is not disputed that on 14 January 1999, in the San Po Kong Magistracy, the applicant was convicted of the offence of possession of a forged travel document, the document in question being a forged Canadian passport. In terms of section 42(4)(b) of the Ordinance a person found guilty of this offence is liable, on summary conviction, to imprisonment for two years. The applicant, in fact, was sentenced to six months' imprisonment and has served that term.

4.The first decision of the respondent which is challenged is the decision made by her on 29 April 1999 to make a deportation order requiring the applicant to leave Hong Kong and prohibiting him from returning to Hong Kong at any time thereafter. The second decision which is challenged is the decision dated 14 June 2000 - made more than a year later - not to rescind that earlier deportation order.

5.Mr Dykes, leading counsel for the applicant, has challenged the lawfulness of the two decisions on a number of grounds. To fully understand the nature and extent of those grounds, it is necessary first to set out in some detail the unusual factual circumstances that have led to the challenges being made.

A history

6.The applicant was born and raised in the north eastern region of Sri Lanka. That area has for some years been a battleground between nationalist Tamil forces seeking an independent Tamil homeland and forces of the Government of Sri Lanka. Armed conflict has not been restricted to that area. Sporadic outbursts of violence - suicide bombings and the like - have taken place throughout the country, particularly in the capital city, Colombo.

7.It is the applicant's case that in or about 1995 he was approached by members of the Tamil Tigers, the military wing of the Tamil nationalist movement. They wished him to take up arms. The applicant, a fisherman, did not wish to become involved in the fighting and refused. His refusal resulted in death threats against him and he was forced to flee.

8.The applicant sought refuge in Colombo. But, as a young man of fighting age, and an ethnic Tamil, he came under the scrutiny of the security forces. He was detained on a number of occasions and almost invariably during those periods of detention was subjected to torture. The torture took different forms but it is apparent that it constituted a grave violation of his person and has apparently left physical scarring.

9.Fearful for his life if he returned to his home and equally fearful for his life if he remained in Colombo under the scrutiny of the security forces, it is the applicant's case that he resolved to flee and seek asylum as a refugee in Canada.

10.On 11 January 1999, the applicant left Sri Lanka by air on a commercial flight. He was at that time in possession of two travel documents. The first was a valid Sri Lankan passport, the second was the forged Canadian passport to which reference has already been made. It is the applicant's case that he obtained the forged passport from 'a friend' who generally facilitated his departure.

11.Exactly why the applicant required the forged passport and his true intentions in respect of Canada lie very much at the centre of these proceedings.

12.When the applicant flew out of Sri Lanka, his journey was intended to take him through Bangkok and Hong Kong and on to Manila where he would be given a ticket enabling him to fly to Canada.

13.The applicant did not travel alone. Another Sri Lankan man travelled with him. That man also possessed a forged Canadian passport. On 12 January 1999, while in transit in Hong Kong, the applicant and his fellow traveller were stopped and searched by immigration officers. The forged Canadian passports were found on them. Both men were arrested.

14.On the day of his arrest, the applicant was interviewed under caution by an immigration officer. A Tamil interpreter interpreted what was said and written. During this interview, the applicant is recorded as saying :

"I met an unknow-named [sic] agent in Colombo. The agent tell me that he can arrange a forged Canadian passport to go to Canada for job seeking. The payment is $5000 CAN and can pay after go to Canada successfully. So I agreed with him."

15.In respect of his departure from Sri Lanka, the applicant is recorded as telling the interviewing officer that he had met the agent at Colombo Airport, received instructions from him and then had "used my Sri Lankan passport to depart Colombo to Hong Kong".

16.Two days after their arrest, on 14 January 1999, the applicant and his companion appeared before a magistrate. They were represented by counsel who had been instructed by the Duty Lawyer Service. After conferring with counsel, each man pleaded guilty to a charge of possession of a forged travel document.

17.Agreed facts were placed before the magistrate. In part, they stated :

" Under caution, both defendants admitted that only the Sri Lankan passports bore their true identities. For the sake of securing work in Canada, they accept the offer from a middleman to arrange the travel documents at a cost Canadian $5,000 upon successful entry into Canada." [my emphasis]

18.In the course of his mitigation, counsel for the applicant stressed that the forged passport had not been used for travel. It was intended to use it, said counsel, in order to secure work in Canada. In this regard, the transcript reads :

".... The 2nd defendant [the applicant] had also never intended to use the false travel document for travel. He intended to use such document to secure a job in Canada. All along, he only used his genuine passport for the travel."

19.Although counsel, in his mitigation, spoke of the applicant being arrested 'more than ten times' by the Sri Lankan security forces for 'political' reasons, nothing was said to the effect that the applicant was seeking asylum in Canada (or any intervening country) as a refugee. The clear impression given to the court was that Canada was intended as a place in which to secure employment and the forged passport was intended to be used for that purpose. No suggestion was made that the forged document was a device necessary for flight from danger; indeed the court was specifically told that the forged passport had not been used for travel.

20.On 2 March 1999, after the applicant had commenced serving his term of imprisonment, the Director of Immigration ('the Director') informed him in writing that he was considering applying to the Secretary for Security for the applicant's deportation back to Sri Lanka. This was to take place after completion of his sentence. The applicant was told that, if he wished, he could make representations.

21.Three days later, on 5 March 1999, the applicant submitted a hand-written letter in English. Apparently, the applicant does not speak or write English and the letter had to be drawn up for him in prison. In that letter, the applicant gave an account of his misfortunes in Sri Lanka and the tortures to which he had been submitted. As to his exodus, the following was written on his behalf -

" I left Sri Lanka on 12th January 1999 because I cannot live in Sri Lanka any more. If I live in Sri Lanka I do not know what will happen to me and my life. I tried to go to another country for protect my life. Therefore I tried to go to Canada through an agent." [my emphasis]

22.A copy of the applicant's letter was delivered to the Hong Kong office of the United Nations High Commission For Refugees ('the UNHCR') accompanied by a request to be granted refugee status. The applicant was interviewed by the UNHCR but was not recognized as a refugee. A letter dated 31 March 1999 addressed to the Director from the UNHCR reads :

".... Please be advised that following interviews by this Office, Mr. Sakthevel [the applicant] was not recognized as a refugee under the mandate of UNHCR. He has been informed of the decision on 30 March 1999."

23.Relying on this decision of the UNHCR, the Director made a recommendation to the respondent, the Secretary for Security, that the applicant be deported for life. In so doing, the Director wrote :

" Mr Sakthevel had applied for refugee status at the United Nations High Commissioner for Refugees but it was rejected after an interview with the officials.

In making the recommendation for Mr Sakthevel's deportation, the Director of Immigration has taken into account the representations put forth by him and the outcome of his application for refugee status. Mr Sakthevel is not recognised as a refugee under the mandate of the United Nations High Commissioner for Refugees and he has been informed of the decision on 30 March 1999. Mr Sakthevel should be deported on the basis of his criminal conviction."

24.On 29 April 1999, the respondent made the decision - the first decision under challenge - to order the deportation of the applicant.

25.The matter, however, did not end there. With the assistance of legal advisors, the applicant spent the next eight months attempting to demonstrate to the UNHCR that he was entitled to refugee status. The documents submitted to the UNHCR included a medical report in which the doctor said that scarring found on the applicant was consistent with his allegations of torture.

26.Among the documents submitted to the UNHCR at this time was another hand-written letter signed by the applicant. The date of the letter is difficult to decipher. In it the following was said :

"Finally I found out that my life is no longer safe in Sri Lanka anymore. So I decided to go any country to protect my life. So I used some one close passport to go another country because, if I use my own passport, Sri Lankan Immigration catch me and send me to jail ..."

That statement, while not free of ambiguity, nevertheless appears to suggest that the applicant did not use his own Sri Lankan passport in order to leave Sri Lanka but instead, in order to avoid possible apprehension by the immigration authorities in Colombo, employed the forged Canadian document. If that is so, it contradicts the applicant's stated position when he gave his cautioned statement and stood trial in the San Po Kong Magistracy.

27.During the time that representations were being made to the UNHCR, the applicant completed his term of imprisonment. However, with the deportation order still in force, he was not allowed to go free but was placed into what is called administrative detention pending the outcome of the UNHCR's fresh deliberations.

28.On 17 December 1999, the UNHCR, seemingly after several refusals, reversed its earlier decisions and recognized the applicant as a refugee. In a letter to the applicant's solicitors of that date the following was said :

"Please be informed that [the applicant] was recognised as a refugee under the Mandate of UNHCR. He is now under our protection in Hong Kong pending a durable solution, and has been released by the Hong Kong Immigration Department on recognizance."

29.Since the time of his release from administrative detention, the applicant has remained in Hong Kong. He receives an allowance from the UNHCR and attempts are now being made to identify a country which will accept him as a refugee for the purposes of settled residence. There is no question of the applicant being returned to Sri Lanka. In light of the UNHCR's findings, the Hong Kong authorities have recognized that there exists a real risk that if the applicant is returned to Sri Lanka he may be subjected to torture or inhuman or degrading treatment. Accordingly, the applicant will remain in Hong Kong until a suitable 'resettlement country' has been found.

30.However, despite representations by the applicant's legal advisors, the respondent has declined to rescind the deportation order made on 29 April 1999. In the result, when a suitable 'resettlement country' is found, it is intended that the applicant will be deported to that country from Hong Kong and will be prohibited from ever returning to Hong Kong. In this regard, in a letter dated 14 June 2000, the respondent wrote to the applicant's solicitors :

".... Having taken into account all the circumstances of the case, I am still not able to find sufficient justification for rescinding the deportation order against your client, which was made on the basis of his criminal conviction. In the circumstances, the decision to deport your client from Hong Kong for life still stands.

As your client has now been recognised as a refugee under the UNHCR mandate, execution of the deportation order against him will however be stayed until the UNHCR has finalised his resettlement to a third country. The Director of Immigration will not deport him to Sri Lanka but to a country which will accept him for resettlement."

31.This decision of 14 June 2000 not to rescind the original deportation order is the second decision which is challenged in these proceedings.

32.What then is the essence of the applicant's complaint? There is no longer any fear of him being returned to Sri Lanka. Nor is there any fear of him being cast out into some form of limbo; he will remain here, financially supported by the UNHCR, until a resettlement country has been found for him. The complaint, as I understand it, is the unfairness of a deportation order being made against him. This unfairness, in the view of the applicant, may have practical ramifications in making it more difficult for the authorities to find him a resettlement country. There has been no evidence, however, on whether this is so. Further, on the basis that the deportation is for life, it will prevent the applicant from ever returning to Hong Kong, no matter what the course of his future life.

A consideration of why the respondent ordered deportation

33.In the course of his submissions, Mr Marshall, leading counsel for the respondent, said that the essential question in these proceedings was one of fact : why did the respondent order the applicant's deportation and why later, when the applicant was granted refugee status, did she not rescind that order? I agree. Although a great many matters of law have been canvassed, I am satisfied that the applicant's challenges fall to be decided essentially on the basis of the respondent's factual findings.

34.In this regard, the respondent's decision, said Mr Marshall, was not founded simply on the applicant's possession of the forged Canadian passport. It was founded on the applicant's unequivocal admission that the forged passport had not been required for flight from Sri Lanka or for travel thereafter but was intended to be used for the purpose of illegally gaining employment in Canada. The cost of the passport - $5,000 Canadian - was, it seems implicit, to be paid out of earnings made in Canada.

35.In her affidavit of 29 November 2000 ('her first affidavit'), the respondent gave her reasons for making the deportation order. In so doing, she noted that the applicant had received the forged passport from a middleman not for the purpose of flight from persecution but 'for the sake of securing work in Canada'. When speaking of her later decision not to rescind the order of deportation, she said :

" In making this decision, I revisited the decision to deport made by me on 29th April 1999. If I had known then that Mr Sakthevel [the applicant] did face a real and substantial risk of persecution and torture if returned to Sri Lanka, would that have changed my view on the deportation decision other than on the matter of destination? His offence had been committed in order that he could make false representations as to his identity and that he was a Canadian citizen to employers in Canada. In my view, it remained a serious criminal offence for which deportation, for the protection of Hong Kong residents in the public interest, remained appropriate. That potential victims of his proposed conduct were in Canada rather than in Hong Kong did not change my view of the seriousness of the offence." [my emphasis]

36.It has long been recognized, of course, that refugees, in order to ensure a successful flight from persecution and arrival into a country of refuge, must often resort to the use of false documents. In a 1950 memorandum from the Secretary General of the United Nations the following was said :

"A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge."

37.Indeed art. 31(1) of the 1951 United Nations Convention relating to the status of refugees ('the Refugee Convention') provides that :

" The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

38.In R. v. Uxbridge Magistrates [1999] 4 All ER 520, Simon Brown LJ commented (at 523) that :

" The need for art 31 has not diminished. Quite the contrary. Although under the convention subscribing states must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier's liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents. ..."

39.To emphasise the point, Simon Brown LJ cited from an article by Richard Dunstan, a one time refugee officer with Amnesty International. That article, United Kingdom : Breaches of Article 31 of the 1951 Refugee Convention [1998] 1 JRL 205, read in part (at 209/210) :

"... those attempting to flee persecution are often unable to obtain national passports from their own authorities and are, in any case, most unlikely to be able to obtain a valid visa for the destination country (as embassies, consulates and High Commissions will simply not issue a visa to any person revealing or suspected of having an intention to seek asylum). Accordingly, the widespread imposition of visa regimes on nationals of refugee-producing countries has forced such persons to resort to the use of forged travel documents (including forged visas) and unorthodox means of travel, often involving enforced stop-overs of varying duration in one or more transit countries and clandestine means of entry to, and exit from, such countries. Inevitably, such forged travel documents (and associated means of unorthodox travel) have become increasingly available (usually at a considerable price) from criminal profiteers."

40.The Refugee Convention has not been extended to Hong Kong. It has never been part of our domestic law. Indeed, in the 1997 Privy Council case of Nguyen Tuan Cuong and Others v. Director of Immigration [1997] WLR 68, Lords Goff and Hoffmann in a joint opinion said : "For obvious practical reasons, Her Majesty's Government has never acceded to the [Refugee] Convention in respect of Hong Kong." However, in her first affidavit, the respondent accepted that there may be cases where, in line with the humanitarian ideals expressed in that convention, sympathetic consideration may be given to a refugee who had been forced to use false documentation to escape persecution. In this regard, she said :

"... It may be that in a particular case or in particular circumstances, I would accept that passport offences were necessarily committed on flight from persecution for a Convention reason or to escape torture, and that I would agree that deportation should be rescinded. But... it would not be in the public interest to discount the seriousness of criminal offences as a matter of course or automatically because they are claimed to have been committed in the course of flight from or escape from persecution."

41.In this context, in respect of the applicant, she continued by saying :

"... In the case of Mr Sakthevel, I can see no reason to discount or remove the penalties from his offence. In the course of his applications for rescission or for a pardon he has never claimed other than that the Canadian passport was not going to be used to facilitate his flight. He has maintained that he possessed the forged Canadian passport in order to make false representations to employers in Canada. I do not consider that his offence arises from flight from persecution as a necessity and I am not minded to consider rescission on the facts of his conviction and his flight as I find them to be ..." [my emphasis]

42.In the course of his submissions, Mr Dykes suggested that the applicant intended to use the forged passport to reach Canada for the purpose of claiming refugee status. In this regard, inter alia, in written submissions the following is recorded :

"... The applicant intended to fly from Manila to Canada where he would make a claim to refugee status and, if accepted, start a new life there."

43.However, on the evidence before her, the respondent has come to a different view. She has made the finding that the forged passport was not intended for the purpose of seeking asylum from persecution, it was intended for the purpose of deceiving potential employers in Canada so that employment, founded on that deceit, could be obtained.

44.It could, of course, be argued - and to some extent Mr Dykes appeared to do so - that the applicant, by his actions and his statements, made it manifest that it was his essential intention to seek a country of refuge and the fact that he did not intend immediately to present himself to the Canadian authorities and seek refugee status does not undermine his true status. In this regard, by way of illustration, Simon Brown LJ in R. v. Uxbridge Magistrates (supra) cited the guidelines of the UNHCR :

"...given the special situation of asylum seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of general insecurity, and the fact that these and other circumstances may vary enormously from one asylum seeker to another, there is no time limit which can be mechanistically applied or associated with the expression 'without delay'."

45.But it seems to me to be implicit in what the respondent has said that she came to a finding that there was no evidence that the applicant intended at any time to present himself to the authorities, not if he was successful in obtaining work in Canada. He may have been fleeing from torture in Sri Lanka but his central intent was to get into Canada and find remunerative employment there, even if it meant deceiving potential employers there.

46.On the basis of such a finding of fact, assuming that the respondent is in some way bound at least to the spirit of art. 31(1) of the Refugee Convention (which she denies), that throws open the question whether the applicant is still protected by the terms of the article. In this regard, art. 31(1) directs contracting states not to impose penalties upon refugees on account of their illegal entry or presence provided such refugees 'present themselves without delay to the authorities'. In R. v. Uxbridge Magistrates (supra) Simon Brown LJ held that the mischief which this provision aims to avoid has been stated in the work The Status of Refugees in International Law, Vol. 11 (1972) by Grahl-Madsen, where the following is written (at 219) :

".... exemption from penalties according to Article 31(1) may not be claimed if the refugee has chosen to stay in a country of refuge for a protracted period without presenting himself to the authorities. If he eventually learns that he is about to be discovered and for that reason gives himself up, he cannot rely on the provisions of Article 31(1)."

47.With respect to the force of the wide-ranging arguments mounted by Mr Dykes, in my view it is implicit in the decision of the respondent that she found as a fact that the applicant intended - as a primary aim - to secure work in Canada and would remain unknown to the authorities until and unless he was discovered. In short, he was intent on the mischief defined by Grahl-Madsen in his academic work.

48.It is fundamental in administrative law that the merits of a decision by an administrative decision-maker are not the concern of the reviewing court unless it can be said that the decision is perverse or irrational. See, for example, Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 (at 1173) where Lord Brightmann said :

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

See also, R. v. Trade and Industry Secretary ex parte Lonrho [1989] 1 WLR 525 per Lord Keith (at 535) :

"The judgments of the Divisional Court illustrate the danger of judges wrongly though unconsciously substituting their own views for the view of the decision-maker who alone is charged and authorised by Parliament to exercise a discretion. The question is not whether the Secretary of State came to a correct solution or to a conclusion which meets with the approval of the Divisional Court but whether the discretion was properly exercised. ...."

49.Mr Dykes, in a multi-layered argument, submitted that the materials relied on by the respondent were not the direct words of the applicant. Mr Dykes said : "He is an uneducated fisherman who does not speak English. His letters were written with the help of a prison scribe whose competence in translating has not been tested or inquired into." He criticised the respondent for not adducing evidence of the accuracy of interpretation; in short, for not revisiting what had led to the applicant's criminal conviction. Mr Dykes argued that there was evidence that the applicant's possession of the forged passport was 'grounded in a factual situation that is directly related to flight out of necessity' and that, in giving no weight to such a consideration (which is to be read with the applicant's later protestations of seeking asylum), the respondent failed to take into account a relevant consideration. With respect, however, despite the intellectual prowess exhibited in Mr Dykes' arguments, it is plain to me that, when reduced, they all go to the merits of the respondent's decisions. The respondent was entitled to look at matters in the round, to consider the time and circumstance in which various statements were made. It was for the respondent to give such weight to matters as she chose. A flight from torture does not ipso facto preclude collateral action of a criminal nature. It was for the respondent, as a question of fact, to find the dividing line, if any. It is not for this Court to usurp that function. I can find nothing in the respondent's decision to suggest that it was irrational or perverse.

Were the respondent's intentions in respect of Canada sufficiently a concern of the respondent to warrant the ordering of deportation?

50.In his written submissions, Mr Dykes said the following :

"The evidence is that the applicant was fleeing Sri Lanka and was en route to Canada. He did not want to land in Hong Kong. When he got to Canada he would still be a refugee and a victim of torture entitled to protection there. Whether he declared his status as soon as he got there or later was a matter for him. If he broke the law in Canada that was a matter for the Canadian authorities. The Secretary for Security should not seek to punish the Applicant for what she thinks he might or might not do in Canada using powers conferred on her for the purpose of public order in Hong Kong."

51.That criticism, however, avoids the fact that Hong Kong, if only in comity, has obligations to protect not only its own direct interests but also its own indirect interests by dealing appropriately with persons who use forged travel documents issued by friendly governments. In the context of criminal law, the principle was stated in R. v. Jumnian Ganin and Others [1989] 1 HKLR 576, the headnote of which reads :

"Section 42 of the Immigration Ordinance was not only concerned with punishing people for deceiving authorities in Hong Kong, but also had as its aim punishing offenders in order to protect the probity of travel documents issued by friendly governments. Part of the punishment for offences of this type was aimed at the presentation of a forged document, purported to be issued by a friendly government. The principle of the comity of nations required that the courts act so as to show displeasure in such circumstances."

Administrative decisions, in my view, may rationally flow from the same principles.

52.Accepting that to be the case, the question posed by Mr Dykes was, as I understand it, this : is the respondent entitled lawfully to employ powers conferred on her for the purposes of ensuring public order in Hong Kong to protect Canadian interests? I have no doubt that she is. International co-operation is often the bedrock upon which threats of criminal conduct in individual states is best protected. Put in plain parlance, if Hong Kong acts to protect Canada, Canada will act to protect Hong Kong.

53.In support of his argument, Mr Dykes relied on the dicta of Keith J (as he then was) in Singh v. Secretary for Security (1996) 6 HKPLR 440 (at page 450) :

".... the making of a deportation order involves striking a balance between the threat which is posed by the potential deportee's continued presence in Hong Kong, and the hardship which deportation would cause to him and innocent third parties."

As I comprehended Mr Dykes' submission in respect of this dicta, it was that, compared with the potential hardship which deportation may cause him, the applicant presents no threat to Hong Kong; that the respondent failed to give proper or sufficient weight to this balance and that, accordingly, her decisions in respect of deportation were oppressive and disproportionate. But Singh, of course, deals with the need to strike a balance between the threat of continued presence in Hong Kong and the hardship that removal will visit on the person being removed. Keith J was in that case considering persons who had a place of settled residence in Hong Kong, who had families here and the like. As he said (at page 444) :

" It is quite apparent from these facts that the implementation of the deportation orders on the applicants will have a devastating effect on them and their families. The applicants would have to return to India where they would have to pick up the lives which they left many years ago. They would be deprived of the privilege of living in the boom economy of Hong Kong, where they now have substantial roots. They would have to cope with living in a third world country where they have never worked before. Most important of all, if their wives and children were to remain in Hong Kong, the applicants would be deprived of the joys of family life which the fortunate amongst us take for granted. ...."

54.In the present case, as Mr Dykes has accepted, the applicant has no ties here, he never intended Hong Kong to be his home. There is, therefore, no question of the respondent having to conduct the kind of balancing exercise contemplated in Singh.

55.Mr Dykes furthered his submissions by saying that, as the applicant has no desire to remain here longer than is necessary to find him a resettlement country, he can be no threat to Hong Kong. As against that, he has already, as a refugee, suffered imprisonment and administrative detention. The applicant is a refugee worthy of protection and assistance under customary international law not to 'the blight' visited upon him of a deportation order for life. Whether the respondent's decision is stern is, of course, not to the point. The question is whether it is lawful. It matters not that this Court may have come to a different view. The applicant came here in transit carrying a forged passport. The respondent came to a finding of fact based on a number of unequivocal statements made by or on behalf of the applicant that the forged passport was intended for a criminal purpose and not for the bona fide purpose of flight. That being so, and the applicant being convicted of a criminal offence of some seriousness, I fail to see how it can be said that the respondent's decision was either oppressive or disproportionate or that it required the overt exercise of balancing 'hardship' against 'threat' laid down in Singh.

Are the applicant's challenges to the first decision academic only?

56.By way of a preliminary argument, Mr Marshall said that the granting of refugee status to the applicant by the UNHCR on 17 December 1999 and the acceptance of that by the respondent has reduced the challenges to the original deportation order to matters of academic interest only. The supervisory jurisdiction of this Court, he said, is not to be engaged in academic questions. The limited question which remains, therefore, is whether the decision of the respondent conveyed in her letter of 14 June 2000 not to rescind the deportation order is or is not flawed. It may disappoint the applicant, he said, that his application does not require wide and general issues, to be adjudicated but the 'factual matrix' does not make it necessary to do so.

57.I agree that it is not the function of this Court to resolve academic questions only but it seems to me that the grounds for the first decision by the respondent are so integral to the grounds for the second decision that the two decisions must in practice be considered together.

A failure to make their own assessment - whether it rendered the respondent's decisions unlawful

58.Mr Dykes submitted that the respondent's decision made in April 1999 to deport the applicant was unlawful because neither the Director nor the respondent made their own assessment of whether the applicant's claims to having been tortured, and thereby forced to flee as a refugee, were or were not well founded. When the applicant was informed that he might be deported, said Mr Dykes, he raised these very issues. But instead of conducting their own inquiry, the Director and/or the respondent vested all responsibilities in the UNHCR, a body not amenable to judicial review by this Court, or to appeal, and a body which cannot be compelled to give reasons for its decisions. The Director and/or the respondent were obliged to conduct their own investigation and/or to make their own final assessment, argued Mr Dykes, because the applicant had vested in him a legitimate expectation that Hong Kong's competent authorities would do so.

59.Although Mr Dykes placed reliance on principles of international customary law flowing from the Refugee Convention, as I perceived the main thrust of his submissions, the applicant's legitimate expectation arose primarily from an international convention which has at all material times applied to Hong Kong, namely, the 1984 United Nations Convention Against Torture ('CAT'). Article 3 of CAT reads :

" 1. No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. [my emphasis]

60.Mr Dykes argued that the legitimate expectation that there would be a genuine inquiry conducted by Hong Kong's competent authorities and that they would make the final assessment springs not only from art. 3.2 but also from undertakings given by the Hong Kong Government in its 1999 report under CAT, more particularly in paragraph 27 of that report which reads :

" Should potential removees or deportees claim that they would be subjected to torture in the country to which they are to be returned, the claim would be carefully assessed, by both the Director of Immigration and the Secretary for Security or, where the subject has appealed to the Chief Executive, by the Chief Executive in Council. Where such a claim was considered to be well-founded, the subject's return would not be ordered. In considering such a claim, the Government would take into account all relevant considerations, including the human rights situation in the state concerned, as required by Article 3.2 of the convention. However, there have been no cases so far where the question of torture has been an issue. Thus Article 3.2 has not been applied in any particular case." [my emphasis]

61.Assuming that Mr Dykes is correct when he says that CAT (either alone or together with binding principles of international customary law applicable to refugees), when read with the Hong Kong Government's report, gives rise to a legitimate expectation, I believe the first question to be asked is : What is the form of that expectation? Is it, as Mr Dykes has advocated, that Hong Kong's competent authorities will themselves carry out an investigation and/or make the final assessment or is it only that Hong Kong's competent authorities will ensure that a careful assessment is made and that, in the course of that assessment, all relevant considerations will be taken into account?

62.Certainly, the respondent contests the narrow obligation advocated by Mr Dykes. In this regard, in her first affidavit, she has said :

" I do not accept that either I or the Director of Immigration in making assessments relating to the return of persons claiming torture or [Refugee] Convention persecution if they are returned to their country of origin, have to duplicate the work of an expert body or panel such as UNHCR. To duplicate the detailed efforts of an expert body in interview and assessment on the basis of country conditions of those matters would achieve no purpose in terms of accuracy or acceptability of result. To impose a parallel duty on a relatively inexpert panel such as myself or the Director of Immigration could only be justified if there were a formal international or domestic requirement of law that assessment can only be done in such a way. There is nothing in CAT that requires such as course. Since the [Refugee] Convention and Protocol have not been extended to Hong Kong there is nothing arising from these instruments that imposes such a course on Hong Kong officials. There would be criticism if I, after inexpert but full investigation, found someone not to be a Convention refugee when UNHCR in parallel process found the same person to be a Convention refugee. What I or the Director have to satisfy ourselves about is that a body we choose to rely upon in our assessments is itself both expert and reliable in its assessments and decisions. We are so satisfied in respect of UNHCR." [my emphasis]

She continued by saying :

"However while I made the decision as the competent authority in HKSAR, I am entitled to rely in making it on UNHCR's assessment of all relevant considerations including where applicable the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Under this Article of CAT I do not have to make this assessment personally so long as I can rely on the decision of UNHCR which is both reliable and expert. ... "

63.The meaning and intent of art. 3.2 and the Hong Kong Government report can only be interpreted by acknowledging first the true nature of both instruments. As the respondent has said, neither constitute domestic legislation. Article 3.2 is drafted in the broad language of conventions and is to be given purposive interpretation : what is the article trying to achieve? Similarly, in my judgment, the report must be given the same interpretation : what does the undertaking contained in the report attempt to achieve? I confess that I can find nothing in the language of either instrument, viewed purposively, to infer that Hong Kong must set up its own investigative apparatus to consider all matters coming before it under CAT whatever the geographical origin of the complaint and notwithstanding the ethnic, religious and cultural dynamics underlying the complaint. Hong Kong can never have intended to accept such a responsibility and such a responsibility cannot have been expected of it. In my judgment, in respect of Hong Kong, both instruments are intended to say no more than that all complaints under the convention will be comprehensively investigated and assessed; the manner of such investigation and assessment, however, is to be left to the competent authorities of Hong Kong. If a careful assessment of a complaint, which includes almost by definition taking into account all relevant considerations, is to be made it may well be necessary to employ the services of international agencies such as the UNHCR. In the context of the two instruments upon which Mr Dykes relies, that is not abandoning a responsibility; rather, it is fully assuming it.

64.Mr Dykes submitted that fairness is not something 'that can be partitioned'. If there is a duty to be fair, he said, it endures for all the decision-making. I do not agree. Many decisions require the advice of outside agencies; that is commonplace. The critical decision in such circumstances is choosing the outside agency that is best able to investigate and provide acceptable advice. In this instance, in the end result the choice of the UNHCR appears to have worked very much to the applicant's advantage.

Failure of the Director and/or the respondent to inform the applicant of the case against him

65.In early March 1999, the Director served a formal notice upon the applicant informing him that an order for his deportation was being considered. He was invited to make representations but the grounds upon which his deportation would be considered were not stated. In the submission of Mr Dykes, principles of procedural fairness called for the applicant to be advised of those grounds so that he knew the case he had to face and could make appropriate representations. It follows that the same obligation rested on the respondent when later representations were made to rescind her decision to order the applicant's deportation.

66.But was there, in the circumstances of this case, any such obligation? I think not. The appropriate test, I believe, was stated by Templeman LJ in R. v. Secretary of State for the Home Department, ex parte Santillo [1981] 1 QB 778 (at 799) :

" The authorities do not disclose an absolute duty on the Secretary of State exercising the power of acting on a deportation recommendation to disclose all the information available to him. In fairness the Secretary of State should disclose information of which the criminal is unaware and which the Secretary of State considers to be persuasive. But it is impossible and undesirable to lay down any hard and fast rules; ...."

67.In Singh (supra), an authority upon which Mr Dykes relied in support of his submissions, Keith J himself came to his findings on the basis of the dicta of Templeman LJ in Santillo.

68.In Singh, the Secretary for Security (at that time), when considering deporting the applicants, had certain police intelligence before him. This intelligence was not made known to the applicants. It was intelligence which was persuasive in nature and related to the character of the applicants and their future criminal intentions. They were believed to be 'troublemakers' and members of a gang seeking vengeance on another gang. The applicants had been sentenced to periods of imprisonment and it was feared that upon release, they would present a threat. Against this background, Keith J said :

".... If the Secretary for Security was going to take this information into account, fairness required that the applicants be given an opportunity to comment on it. The Secretary for Security could not have failed to regard the statements in the report as anything other than persuasive, and it is undoubtedly the case that the statements could have had an effect on the ultimate decision made by the Secretary for Security. That is the test for determining whether the information was of such a quality that it should have been disclosed to the person likely to be affected by the administrative decision to be taken ...."

Keith J concluded :

".... The conclusion which I have reached is that the Secretary for Security was so seriously misled by what the police records were said to contain on an issue which was crucial to the balancing exercise he had to conduct, and it was so unfair for him to take what those records said into account without the applicants having been given an opportunity to comment on what they contained, that the deportation orders must be quashed on those grounds. ...."

69.In the present case, however, the reason why the Director intended to recommend the applicant's deportation required no embellishment. I believe it was self-evident. The applicant had pleaded guilty to the criminal offence of possessing a forged passport. Through his legal representative he had told the Court - by way of mitigation - that he had not needed the passport to leave Sri Lanka or to travel. He intended to use it only to seek employment in Canada. In respect of his deportation, that quite patently left it open to the applicant to explain in greater detail exactly why he possessed the passport and why its possession should not be the cause for his removal. What other reason could there be for the applicant's considered deportation? There was none. As Templeman LJ said in Santillo (supra) in respect of an application which he considered to be 'regardless and reckless of facts which have been buried under a mass of authorities' - 'I decline to turn my back on reality'.

70.The applicant in this matter was given the opportunity to make representations. He chose to do so. Those representations explained why he had decided to leave Sri Lanka and why he was afraid to return. Those representations led to him, in the final analysis, being recognized as a refugee. However, on a factual basis, they did not persuade the respondent that the possession of the forged passport was required for the bona fide purpose of flight. Later, the applicant was able through his solicitors to make more detailed representations. But they failed also to persuade the respondent to change her mind in respect of the obvious, core issue : why had the applicant possessed the forged passport.

71.In the circumstances, I fail to see how it can be said that the failure of the Director and/or the respondent to advise the applicant of the grounds upon which deportation was (or would be) considered caused any form of unfairness. The information which the Director and the respondent had before them had emanated from the applicant himself. Nor was it complex. Clearly, on the basis of Templeman LJ's dicta in Santillo (supra) a discretion was vested in the Director and the respondent and I cannot say that it was exercised unfairly.

72.In support of his argument that there had been a breach of the duty to ensure procedural fairness, Mr Dykes relied on the provisions of art. 9 of the Bill of rights which reads :

" A person who does not have the right of abode in Hong Kong but who is lawfully in Hong Kong may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority." [my emphasis]

73.Article 9 was engaged, said Mr Dykes, because the applicant - a passenger in transit - was lawfully in Hong Kong at the time of his arrest. This, in turn, led to lengthy argument as to whether a passenger in transit, waiting in Hong Kong, is or is not lawfully here. But there is no need for me to mount an expedition into that difficult legal terrain. In my opinion, art. 9 of the Bill of Rights does not advance the argument that there was a breach of the duty to ensure procedural fairness. Article 9 does no more than underscore the need for such fairness. But, as I have said, in the exercise of their discretion, neither the Director nor the respondent acted unfairly in the manner alleged.

Conclusion

74.For the reasons given in this judgment, I am satisfied that the application must be dismissed.

75.I presume the applicant is legally aided. On that basis, I will make an order nisi that costs be awarded to the respondent and, in so far as is necessary, will order that the applicant's costs be taxed in accordance with legal aid regulations.

Representation:

Mr Philip J. Dykes, SC & Mr Hectar H. Pun, instructed by Messrs Barnes & Daly, for the Applicant

Mr William Marshall, SC & Mr Steven Parker, SGC of Department of Justice, for the Respondent

Remarks:
Appeal by Applicant to Court of Appeal. Appeal allowed. Please refer to Appeal Judgment of CACV000211/2002.