X v. The Secretary for Security and Another

HCAL000050/1998

1998 HCAL No. 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Keith in Court

Date of Hearing: 16 December 1998

Date of Delivery of Judgment: 16 December 1998

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J U D G M E N T

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1. On 24th February 1997, the Secretary for Security ordered the deportation of the Applicant from Hong Kong. The Applicant now applies for judicial review of that order. He contends that it was Wednesbury unreasonable for the Secretary for Security to order his deportation.

2. Since that order was made, the Applicant has applied for a Hong Kong permanent identity card. That application was refused. His appeal against that refusal is to be heard by the Registration of Persons Tribunal next month. If his appeal succeeds, he will have acquired the right of abode in Hong Kong. Deportation orders cannot be made against persons who have the right of abode in Hong Kong. It is said that if the Registration of Persons Tribunal decides that the Applicant has acquired the right of abode in Hong Kong, that will relate back to a time long before the deportation order was made, and will result in the deportation order lapsing.

3. However, in case the appeal to the Registration of Persons Tribunal had not been determined by the time that this application for judicial review came to be heard, this application for judicial review also raises the issue of the Applicant's status. The deportation order itself cannot at present be challenged on that ground, but what can be challenged is the decision to impose conditions on the Applicant's stay in Hong Kong for the time being. It is said that such conditions cannot be imposed on someone with a right of abode in Hong Kong. That is the second decision challenged in these proceedings.

4. The Applicant's solicitors have always wanted this application for judicial review to be deferred until after the appeal to the Registration of Persons Tribunal has been decided. Yesterday, the parties came to an agreement that the issue relating to the Applicant's status should not be decided on this application for judicial review at present, but should initially at any rate be decided by the Registration of Persons Tribunal, which is the body primarily responsible for determining disputed issues relating to a resident's status. That meant that the only issue which the parties wanted me to decide today was whether the order for deportation was Wednesbury unreasonable.

5. However, even that issue will not have to be decided if the Applicant's appeal to the Registration of Persons Tribunal succeeds, and if a successful appeal will result as a matter of law in the deportation order lapsing. Having taken instructions, Mr. Robert Whitehead for the Respondents agrees that in these circumstances the most appropriate course now would be for this application for judicial review to be adjourned sine die with liberty to restore. I agree with that course, and that is an order which I therefore make by consent. Mr. Whitehead added, however, that the Director of Immigration wishes to reserve his position on whether he will argue that it would be open to him to execute the deportation order even if the appeal to the Registration of Persons Tribunal succeeds. It has therefore been agreed that he will not seek to execute the deportation order without giving notice to the Applicant's solicitors, so that they can then consider whether to apply for leave to apply for judicial review of the decision to execute the deportation order.

6. By consent, the order I make as to costs is that the costs of this application be reserved, with liberty to apply in the event of the application not being brought before the court again and the parties being unable to agree an order for costs.

Representation:

Mr. Philip Dykes S. C., instructed by Messrs. Pam Baker & Co., for the Applicant.

Mr. Robert Whitehead, instructed by the Department of Justice, for the Respondents.