Ghulam Rbani v. Secretary for Justice for and on behalf of the Director of Immigration

CACV 267/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 267 OF 2011

(ON APPEAL FROM DCCJ NO. 531 OF 2010)

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BETWEEN

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J U D G M E N T

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

1.By our Judgment handed down on 4 December 2012, we dismissed the appellant’s appeal.

2.The appellant now applies, by Notice of Motion dated 18 December 2012, for leave to appeal from our judgment to the Court of Final Appeal.  The application is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) on the basis that the questions involved in the appeal are ones which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.  Alternatively, the “or otherwise” ground is relied upon.

3.Although two questions said to be of great general or public importance are identified in the Notice of Motion, the appellant now only relies on the first of the two questions in support of the application for leave.  That question is in the following terms:

“Does Section 11 of the Hong Kong Bill of Rights Ordinance, Cap.383 prevent a person detained under Section 32(2A) of the Immigration Ordinance Cap.115 from relying on Article 5 of the Hong Kong Bill of Rights Ordinance or Articles 28 and 35 of the Basic Law when challenging the legality of his detention?”

4.In Ubamaka Edward Wilson v Secretary for Security, unrep., FACV 15/2011, 21.12.12, decided after we gave judgment in this appeal, the Court of Final Appeal upheld the validity of s. 11 of the HKBORO[1] and therefore excluded the application of the BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BOR3 are engaged.[2]  The impact of HKBORO s. 11 on other rights said to be non-derogable was left open.[3]

5.In our Judgment (at §§7 and 53), we explained why the decision to detain the appellant under IO s. 32(2A) was a decision governing entry into, stay in and departure from Hong Kong and we do not consider the appellant’s argument to the contrary to be reasonably arguable.

6.The appellant now wishes to argue in reliance on the Court of Final Appeal’s judgment in Ubamaka, that the right relied upon by him in this case (namely the right not to be subject to arbitrary detention under BOR5(1)) is a non-derogable right and thus not one to which HKBORO s. 11 applies.

7.However, we do not consider the points raised by the appellant are reasonably arguable.  The right under BOR5 is not one of the non-derogable rights listed in HKBORO s. 5(2)(c) and, in our view, it is not reasonably arguable that it is a non-derogable right whether as a matter of construction of the HKBORO or at common law.  The new argument relying on customary international law was not argued below or before us and, in any event, is inconsistent with the judgment of the Court of Final Appeal in Ubamaka upholding the constitutional validity of HKBORO s. 11 as a matter of domestic law.

8.Insofar as the appellant seeks to rely on BL28 and BL35, we explained in our Judgment (at §§60 to 64) why, by reason of BL41, the appellant was unable to rely on those articles.  We do not think the appellant’s appeal against our conclusion in this regard is reasonably arguable.

9.No basis is identified for the contention that the appeal falls within the “or otherwise” limb of s. 22(1)(b) of the Ordinance.

10.We therefore dismiss the Notice of Motion.

Mr Philip Dykes SC & Mr Hectar Pun, instructed by Yip & Liu, assigned by the Director of Legal Aid, for the Plaintiff/Appellant

Mr Anderson Chow SC & Ms Grace Chow, instructed by the Department of Justice, for the Defendant/Respondent