SABIR MOHAMMED AND ANOTHER v. PERMANENT SECRETARY FOR SECURITY

HCAL 114/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 114 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  The 1^st applicant is an Indian national who had overstayed in Hong Kong since October 2004, and been convicted respectively for trafficking a dangerous drug and possession of a dangerous drug in March 2012 and April 2014.  The Permanent Secretary for Security (“the Permanent Secretary”), the respondent, issued a deportation order (“the DO”) for life against the 1^st applicant on 5 June 2013.  The 1^st applicant eventually married the 2^nd applicant, a permanent resident in Hong Kong, but on 2 July 2014, he himself indicated to the Immigration Department his wish to return to India as he wanted to see his ailing mother.  He was later voluntarily deported back to India on 27 August 2014 under the DO.

2.  This is now the 1^st and 2^nd applicants’ judicial review seeking to challenge the Permanent Secretary’s decision (“the Decision”) dated 28 November 2014, refusing the 1^st applicant’s application seeking to rescind the DO.  The rescission application was made through the 1^st applicant’s then solicitors’ letter dated 16 July 2014.

3.  The applicants say the Decision is unlawful and ask the court to quash it and to remit the rescission application to the Permanent Secretary for reconsideration in light of the court’s ruling.

4.  The applicants are represented by Mr Dykes, SC leading Mr P Y Lo.  The Permanent Secretary, who opposes the application, is represented by Mr Jonathan Chang.

B.   BACKGROUND

B1.   The relevant facts

5.  The relevant facts are these.

6.  The 1^st applicant came to Hong Kong as a visitor in September 2004 and was permitted to stay until 1 October 2004.  He had then overstayed and gone underground.

7.  He was arrested by the police in May 2006 for being a suspected overstayer and was handed over to the Immigration Department. Before he was arrested, he had already lodged a refugee claim with the Unite Nations High Commission for Refugees (“UNHCR”) in Hong Kong.  Further, during his detention by the Immigration Department, he also made a torture claim (“the 1^st torture claim”) on the allegations that his life would be in danger if he was returned to India.  In light of his refugee claim and the 1^st torture claim, he was released on recognizance on 24 July 2006.  His refugee claim however was closed by UNHCR on 25 October 2006.

8.  While on recognizance, the 1^st applicant was arrested by police on 4 November 2011 for the offence of trafficking a dangerous drug (cocaine).  He was subsequently convicted in March 2012 and sentenced to six months’ imprisonment.

9.  In light of this conviction, the Director of Immigration (“the Director”) considered that the 1^st applicant’s continued presence in Hong Kong would pose a threat to law and order.  The Director therefore intended to apply for a deportation order against him under section 20(1)(a) of the Immigration Ordinance (Cap 115) (“the IO”).  However, given the pending 1^st torture claim, the Director issued a removal order in the interim against the 1^st applicant instead of proceeding with the deportation order application.  The 1^st applicant did not appeal against the removal order, which was issued on 5 July 2012.

10.  On 10 July 2012, the 1^st applicant was discharged from the prison having served his sentence.  He was transferred to and detained by the Immigration Department pending his removal.  However, given his pending 1^st torture claim, he was eventually released on recognizance on 25 August 2012 on the condition that he would report to the reporting office in every six weeks’ time.

11.  The 1^st torture claim was refused by the Director on 16 November 2012 and the 1^st applicant’s appeal against the refusal was also dismissed by the Torture Claims Appeal Board on 28 December 2012.

12.  Soon after that, the 1^st applicant defaulted to report recognizance on 31 December 2012 and absconded since then until four months later.  He reappeared and reported to the reporting office again on 10 April 2013 and informed the immigration officer there that he wanted to go back to India as soon as possible because his mother was in hospital and he had no money to buy the air ticket.

13.  The Immigration Department then resumed the deportation process.  The Director also informed the 1^st applicant that he would apply for a deportation order to deport the 1^st applicant on the basis that the 1^st applicant’s continued presence in Hong Kong was regarded as undesirable in light of his earlier conviction.  The 1^st applicant raised no objection and indicated again that he wanted to go back to India.  However, the 2^nd applicant, then his girlfriend, objected to that on the grounds that she was pregnant and wanted to live with the 1^st applicant and the baby in Hong Kong as a family.  She also stated that, although she was then married to another person, she was going to divorce her husband and re-marry the 1^st applicant.

14.  The Director applied to the Secretary for Security for a deportation order on 14 May 2013.  On 5 June 2013, the Permanent Secretary issued the DO.  However, the 1^st applicant again failed to report recognizance (as he was expected to) on 13 June 2013 and had disappeared since then.  The DO therefore could not be effected on him.

15.  Later, he was arrested by the police on 17 January 2014 for the offence of possession of a dangerous drug.  He was then granted bail but handed over to the Immigration Department to arrange for his removal under the DO.

16.  While detained, the 1^st applicant lodged again a non-refoulement claim on the ground of cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383), again on the allegations that his life would be in danger if he was returned to India.  I would for convenience called this “the 2^nd torture claim”.

17.  The deportation under the DO was then withheld in light of the 2^nd torture claim.

18.  On 26 March 2014, the 1^st applicant was convicted for the offence of possession of dangerous drugs and fined $3,000. He was then released by the Immigration Department on recognizance on 24 April 2014, pending the determination of the 2^nd torture claim and the arrangement to return him to India under the DO as he had indicated.

19.  On 2 July 2014, the 1^st and 2^nd applicant solemnized their marriage in Hong Kong.

20.  On 17 July 2014, the applicants attended the reporting office and submitted their solicitors’ letter dated 16 July 2014 asking for the rescission of the DO (ie, the rescission application).

21.  On 18 July 2014, the Immigration Department contacted the 2^nd applicant and asked her to confirm whether the 1^st applicant had decided to return to India.  She replied that the matter was still under consideration.

22.  On 21 July 2014, the applicants approached the Immigration Department Deportation Section, whereby the 1^st applicant made the request that he wanted to return to India to visit his mother who was ill.  The applicants were reminded that the 1^st applicant would be prohibited from being in Hong Kong after departure while the DO (which is for life) is in force and his entry to Hong Kong would only be considered if the DO was suspended or rescinded, which they understood.  The 1^st applicant then submitted in writing that “I want go back to India as soon as possible to visit my mother was in hospital now.  So I want to close my non-refoulement claims [ie, the 2^nd torture claim]”.  Withdrawal of the 2^nd torture claim was subsequently confirmed by the Immigration Department Assessment Section on 4 August 2014.

23.  The Immigration Department then arranged for the 1^st applicant’s departure.  On 27 August 2014, the 1^st applicant was formally served with a copy of the DO and explained of its contents.  He was then deported to India voluntarily on the same day.

24.  On 28 November 2014, the Permanent Secretary made the Decision refusing the rescission application.

25.  On 10 December 2014, the 2^nd applicant gave birth to her son.

26.  On 29 June 2015, the applicants applied for leave to judicially review the Decision.  The court granted leave on paper on 7 September 2015.

B2.   The Decision

27.  The Chief Executive (“the CE”) has the power to make a deportation order under section 20(1)(a) of the IO, which provides as follows:

“Section: 20 Power to deport

(1) The Governor may make a deportation order against an immigrant if-

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

...”

28.  At the same time, under sections 54 and 55 of the IO, the CE also has the power to respectively suspend or rescind a deportation order and to impose any conditions as he thinks fit.  They provide as follows:

“Section: 54 Suspension of deportation orders

(1) The Governor may suspend the deportation order made against any person on such conditions as he thinks fit, and during the continuance of the suspension the deportation order shall not be in force.

(2) The Governor may rescind the suspension of a deportation order, whereupon the deportation order shall again be in force in respect of the person against whom it was made.

(3) Any police officer who has reason to suspect that a person has contravened any condition subject to which the deportation order made against that person is suspended may arrest such person.

(4) If a person who has been arrested under subsection (3) is charged with any offence, he shall be brought before a magistrate within 48 hours after his arrest.

Section: 55 Rescission of deportation orders

(1) The Governor may rescind the deportation order made against any person, but the rescission of the deportation order shall not affect the power of the Governor to make another such order against that person.

(2) The Governor may, on rescinding the deportation order made against any person, require that person to enter into a recognizance in the prescribed form in such amount and with such sureties as the Governor may specify.

(3) A requirement under subsection (2) shall be deemed for the purposes of the provisions of the Magistrates Ordinance (Cap 227) relating to recognizances to be an order under section 61(1) of that Ordinance.”

29.  The CE’s above powers under sections 20(1), 54 and 55 of the IO have been delegated to the Permanent Secretary.[1]

30.  In support of the rescission application, the applicants (through the solicitors’ letter dated 16 July 2014 and the 2^nd applicant’s letters respectively dated 15 October and 6 November 2014)[2] raised the following grounds in summary:

(1)   The 1^st applicant got married with the 2^nd applicant in July 2014.  She was pregnant and the expected date of confinement would be December 2014.  She had some serious complications in relation to her pregnancy including abdominal pain.  The 2^nd applicant had since fallen out with her parents who would be unable to provide their assistance in taking care of her and the child during her pregnancy and shortly thereafter.  Therefore, the 1^st applicant’s support during this difficult period would be extremely important to the health of the 2^nd applicant and their expected child.

(2)   The 1^st applicant only intended to briefly visit his ill parents in India.  His parents would also wish to meet him, his wife and his expected child so as to give blessings to them in accordance with the Indian traditions.

(3)   The 1^st applicant had been in Hong Kong for almost 10 years since 2004 and had taken Hong Kong as home.  He had built up a social network and serving his toad community in Hong Kong.  The 1^st applicant had allegedly answered recognizance in a timely manner and complied with the recognizance terms.[3]

(4)   Both the applicants had no desire to live in India as they wishedto continue their livings normally in Hong Kong.  They strongly wished to take care of and raise their child together in a normal family manner in Hong Kong. Barring the 1^st applicant from returning to Hong Kong would break up the family as they had determined that their child should be raised and educated in Hong Kong.  Lack of paternal care would be detrimental to the child’s growth and development.

(5)   It would be the best for their family, particularly their child if the deportation order made against the 1^st applicant be rescinded so that he can come to Hong Kong after his return to India.  The applicants asked for mercy in considering the 1^st applicant’s case.

31.  After considering these representations, the Director however recommended to the Permanent Secretary to reject the rescission application.  The reasons for the recommendation have been set out in the relevant parts of the file minute M4 dated 19 November 2014 as follows:

“Comments from Director of Immigration

8. The Director of Immigration (the Director) has taken into account the representations made by Mr Sabir’s legal representatives. The deportation of Mr Sabir was the consequence of his serious criminal conviction in Hong Kong. The decision was made after careful consideration. The fact that the deportation of Mr Sabir for life may deprive him of his proximity to madam Wong and his expected child in Hong Kong has also been carefully considered. The Director notes that the marriage of Mr Sabir and Madam Wong took place in July 2014, well after the making of the deportation order. Being a subject of deportation order, Mr Sabir should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong. The Director opines that Madam Wong is free to bring her child to reunite with Mr Sabir elsewhere outside Hong Kong should she wish to do so.

9. The facts that Mr Sabir had twice failed to answer recognizance and that he was convicted of the offence of ‘Possession of a dangerous drug’ again in March 2014 strongly demonstrate that he does not respect the laws of Hong Kong. Having considered all circumstances of the case, the Director cannot find any justifiable grounds which may warrant rescission of the deportation order. The Director therefore recommends that the request for rescission be rejected. The Director also recommends that suspension of the deportation order should not be considered.

Comments from Department of Justice

10. ...

Decision Sought

11. The assessment and recommendation of the Director are reasonable and agreeable. The deportation of Mr Sabir was the consequence of his criminal conviction in Hong Kong. The facts that Mr Sabir had twice failed to answer recognizance in 2012 and 2013 (absconded for a total period of about ten months); and that he was convicted of the offence of ‘Possession of a dangerous drug’ again after the making of the deportation order in March 2014 strongly demonstrate that he is a repeated offender and does not respect the laws of Hong Kong.

12. The deportation of Mr Sabir for life may deprive him of his proximity to Madam Wong and his expected child in Hong Kong.  It is however noted that the marriage of Mr Sabir and Madam Wong took place in July 2014, well after the making of the deportation order.  Being a subject of deportation order, Mr Sabir should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong.  Also, Madam Wong is free to bring her child to reunite with Mr Sabir elsewhere outside Hong Kong should she wish to do so.  Having considered all circumstances of the case, I recommend that the request for rescission of the deportation order made against Mr Sabir be rejected and the suspension of deportation order should not be considered.”

32.  The Permanent Secretary has explained in the Affidavit of Ng Yin Ha Windsor the reasons for making the Decision after considering the applicants’ above representation and the Director’s recommendation as follows (footnotes omitted):

“15. On 30 September 2014, SB received from ImmD a memo dated 29 September 2014 giving comments on the Applicants’ application for rescission of the deportation order and recommending that the request for rescission of the deportation order be rejected and also suspension of the deportation order should not be considered. A copy of ImmD’s memo dated 29 September 2014 is in Exhibit ‘WTF-26’.

16. On 19 November 2014, Mr NG Yu Hin Vincent, an Executive Officer I of SB, assessed the Applicants’ case. He took into account all the humanitarian and compassionate circumstances of the Applicants, including those given in the letter dated 16 July 2014 from the Applicants’ then legal representative, Weir & Associates, to ImmD (Exhibit ‘WYM-18’). Mr Ng has also taken into account the comments from the Commissioner of Police and recommendation of the Director. He formed the view, inter alia, that even though the deportation of the 1^st Applicant for life may deprive him of his proximity to the 2^nd Applicant and their expected child in Hong Kong, at the time of their marriage in July 2014, the 1^st Applicant was already long subject to the deportation order (since June 2013), and he should therefore not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong. He also noted that the 1^st Applicant had twice failed to answer recognizance in 2012 and 2013 (absconded for a total period of about 10 months) and was convicted of the offence of possession of a dangerous drug in March 2014 after the making of the deportation order (which was his second criminal conviction of a drug related offence in Hong Kong), which strongly demonstrated that he does not respect the laws of Hong Kong. Mr Ng submitted his recommendation to the Permanent Secretary, via me and the Principal Assistant Secretary for Secretary, that the request for rescission of the deportation order be rejected and the suspension of the deportation order should not be considered.

17. I agreed with Mr Ng’s recommendation. I endorsed the recommendation and submitted it, via the Principal Assistant Secretary for Secretary to the Permanent Secretary for consideration. The Permanent Secretary, having considered all materials presented to him, including the representations put forth by the Applicants’ then legal representatives, the Applicants’ Certificate of Marriage andthe medical proof relating to the 2^nd Applicant’s pregnancy, also agreed with the recommendation and decided to reject the request for rescission of deportation order on 28 November 2014.

...

20. I crave leave to refer to paragraphs 51-55 of the Affirmation of Wong Tak Fai in respect of the prevailing overall immigration policy.

21. In exercising the discretionary power to suspend or rescind a deportation order, due regard is always given by the Permanent Secretary to the very restrictive and stringent immigration policies and practices in Hong Kong.

22. Since the exercise of that discretionary power to suspend or rescind a deportation order will result in a material departure from the established overall immigration control policy, the Permanent Secretary’s normal practice has been and remains not to exercise the discretion but for very exceptional cases such as where strong humanitarian or compassionate grounds are shown.

23. When the Permanent Secretary considers a case in exercise of his discretionary power, all the information available and the entire circumstances of the case will be taken into consideration. Since this is a discretionary power that may have to cater for a myriad of circumstances, it would not be sensible for the Permanent Secretary to lay down a list of definitive factors to be considered, or the weight to be given to a particular factor in certain scenarios, suffice to say that no single factor can be decisive. What will be considered as a sufficiently exceptional humanitarian or compassionate ground will depend on the individual facts of the case. Such discretion has been exercised on very exceptional circumstances before such that further repatriation arrangements for certain individuals are refrained.

24. In this connection, I wish to point out the nature or character of a deportation order which is directly relevant to the consideration of a request for suspension or rescission of a deportation order. In the normal case of someone whose deportation is warranted because he has committed a deportable Offence in Hong Kong, deportation is not a sentence or punishment which is there to fit the crime. Deportation is triggered because the territory has decided that it no longer welcomes that particular person, wants him to leave, and does not want him to come back again. A deportee is therefore, as a rule, not entitled to expect some finite period to his deportation or suspension or rescission of his deportation order according to the circumstances of his case. In short, a deportation order is not a temporary measure and is not like a sentence of imprisonment at the end of which the offender is free to resume his normal life. Deportation is the consequence of a decision that an immigrant or visitor is no longer welcome in Hong Kong and will not be welcome in Hong Kong in the future. Accordingly, although there is power to deport someone for a limited period and to suspend or rescind a deportation order made, those are not powers which would normally be exercised in the absence of the most exceptional circumstances. Given the aforesaid essential nature or character of a deportation order, the approach of the Permanent Secretary in considering the request for suspension or rescission of the deportation order in the present case cannot be faulted.

25. I also wish to stress that the 1^st Applicant in the present case returned to India under the deportation order voluntarily upon his own request (see paragraph 31 below). The presence in Hong Kong of a person, who does not have the right to land or remain in Hong Kong, committed crimes posing threat and danger to the local society and resists to be returned to his home country by raising non-refoulement claims and abscondences, is obviously not desirable. If one day that person, wishes to visit his family in his home country and requests ImmD to make all the arrangements for his return trip under a deportation order including obtaining a valid travel document and buying an air ticket charging on the public fund which ImmD does, and then after he has finished his business in his home country, he asks for permission to come back and requests lifting up all the restrictions imposed on him on the ground of his family connection here (which is the 1^st Applicant’s case), it will not only be a misuse of the public resources but also a misuse and disrespect of the immigration control system. If that person is allowed to come back to Hong Kong by suspending or rescinding the deportation order in respect of him, this will certainly encourage more violation and misuse of the immigration control system and amount to prejudice to good administration.

26. For reasons stated above, the 1^st Applicant, as a foreign national subject to immigration control, does not have a ‘right’ or ‘legitimate expectation’ to remain in Hong Kong on his own accord or otherwise derived from the right of abode and/or other rights of the 2^nd Applicant and their child. Although the Permanent Secretary is not obliged to do so, considerations had indeed been given to whether strong compelling factors or exceptional humanitarian circumstances exist in the present case that may justify the Permanent Secretary to exercise his discretionary power to suspend or rescind the deportation order made against the 1^st Applicant. However, the Permanent Secretary Was not satisfied that the circumstances of the case, including, inter alia, (he Applicants’ wish to have their family and to raise their child in Hong Kong, gave rise to any strong humanitarian, compassionate or other extenuating grounds justifying the 1^st Applicant to be allowed to remain in Hong Kong on an exceptional basis. In any event and as it has been subsequently revealed in paragraph 34 of the Form 86, paragraph 52 of the 2^nd Applicant’s 1^st Affirmation and paragraph 13 of her 2^nd Affirmation, the 1^st Applicant, while the deportation order is in force, can reunite with the 2^nd Applicant and their child elsewhere such as Shenzhen, China.

27.   For the reasons stated above, the impugned decision was not unreasonable. Even if the matter were to be remitted to the Permanent Secretary for fresh consideration in the light of any alleged ‘rights’ of the Applicants and their child, the realistic position is that it is highly likely that the Permanent Secretary would maintain his decision not to suspend or rescind the deportation order against the 1^st Applicant, having regard to: (1) the well-established stringent immigration policy being applied in Hong Kong; (2) the weight that may be attached to any particular factors is primarily a matter for the Permanent Secretary to decide; and (3) there is nothing to suggest that no reasonable decision-maker could have come to the decision that any alleged ‘rights’ of the Applicants and their child would not be sufficient to justify suspension or rescission of the deportation order, upon a consideration of all the circumstances of the facts of the present case.”

33.  In summary, the Permanent Secretary made the Decision on the following basis.

34.  It is the Permanent Secretary’s normal practice that, taking into account the prevailing strict immigration policy, he would only consider exercising the discretion to rescind a deportation order in exceptional cases such as where strong humanitarian or compassionate grounds are shown.

35.  In the present application, he was not satisfied that there were such strong and exceptional humanitarian or compassionate grounds:

(1) The fact that the 1^st applicant’s deportation for life might deprive him of his proximity to the 2^nd applicant and the child in Hong Kong did not amount to strong and exceptional circumstances as (i) at the time when their marriage took place in July 2014, they were already aware of the making of the DO, and hence they should not have any expectation that the 1^st applicant’s prohibition to stay in Hong Kong would be easily lifted; and (ii) the 2^nd applicant and the child could reunite with the 1^st applicant elsewhere outside Hong Kong if they wished to do so.

(2) The fact that the 1^st applicant had twice failed to answer recognizance and that he was again convicted of the offence of “possession of a dangerous drug” even after having served the sentence of imprisonment for his first conviction strongly demonstrated that he did not respect the laws of Hong Kong.  When this was looked at together with the above considerations, the Permanent Secretary was not satisfied that the present case represented an exceptional case with strong humanitarian or compassionate ground to rescind or lift the DO, which was first issued on the basis that the 1^st applicant’s presence in Hong Kong was considered to be undesirable given his threat to law and order in Hong Kong.

C.   THIS JUDICIAL REVIEW

36.  The applicants raise essentially three grounds of judicial review.  But before I look at these grounds, in light of the arguments raised, it is helpful to first set out what I regard to be the relevant legal principles concerning deportation order and immigration policy.

C1.   Relevant legal principles relating to deportation order and immigration policy

37.  First, as the clear words in section 20(1)(a) of the IO provide, the CE (and the Permanent Secretary as the person delegated with the power) has the power to issue a deportation order when an immigrant is convicted for an offence which is punishable with imprisonment for not more than two years.  In other words, the legislature has identified and regarded that an offence which is punishable for not more than two years is by itself serious enough tomerit the issue of a deportation order.  Thus, in Weerachon Sae-Ieo v Secretary for Security [2003] 2 HKLRD 519, Hartmann J (as he then was) said as follows at paragraph 59:

“59. In contrast to the English scheme, the Hong Kong scheme makes no provision for a two-stage process. In my judgment, it is clear from a reading of s.20(1)(a) that the Hong Kong Legislature has itself defined what offences are serious enough to merit deportation; namely, offences punishable with imprisonment for not less than two years. The English scheme - s.3(6) - speaks only of an offence punishable by imprisonment; no term of imprisonment is specified. In Hong Kong, therefore, the Legislature having defined criminal conduct of sufficient seriousness to merit deportation, the exercise of Executive discretion pursuant to s.20(1)(a) is triggered by a conviction for any such conduct.” (emphasis added)

38.  Second, as Mr Dykes rightly accepts, a deportation order made under section 20(1)(a) of the IO is prima facie for life, absent special circumstances. This is well supported by authorities:

(1) In Bahadur v Secretary for Security (1998-99) 8 HKPLR 77 where Stock J (as the NPJ then was) said at 95E-H:

“Deportation is triggered because the territory has decided that it no longer welcomes that particular visitor, wants him to leave, and does not want him as a visitor again. Whilst it is open to the host territory to say to a visitor in a certain instance that it requires the visitor to leave only for so long as a particular threat exists, that is an event which will arise unusually. A deportee is, as a rule, not entitled to expect some finite period to his deportation according to the circumstances of his case. Normally, he is not welcome back, and that means what it says. It is open to him to ask in the future to be allowed to come back (section 55), and he is allowed to ask that the host country holds its hand on his proposed expulsion (section 54), but in the absence of the most exceptional circumstances, a person in the applicant's position cannot be heard to say that he should have been deported for only six months, or 12 months.” (emphasis added)

(2) Moreover, in Pollard v Permanent Secretary for Security (HCAL 92/2010, 11 March 2011) at paragraph 38, A Cheung J (as the learned CJHC then was) also observed that:

“38. In short, a deportation order is not a temporary measure and is not like a sentence of imprisonment at the end of which the offender is free to resume his normal life.  Deportation is the consequence of a decision that an immigrant or visitor is no longer welcome in Hong Kong and will not be welcome in Hong Kong in the future.  Accordingly, although there is power to deport someone for a limited period, that is not a power which would normally be exercised.  In other words, as a prima facie rule, a deportation order is for life, absent special circumstances.” (emphasis added)

39.  Third, in a case where a deportation order is issued against someone who has committed a criminal offence, the deportation order is not a sentence or punishment to fit the crime.  The Permanent Secretary in deciding whether to exercise his discretion to issue a deportation order under section 20(1)(a) is to be guided by considerations of public policy.  As observed by Hartmann J in Weerachon Sae-Ieo at paragraph 60, the question may be asked is: do Hong Kong’s best interests justify an order for deportation, or, are there grounds in public good to justify such an order.  A threat by the applicant’s presence in Hong Kong to her law and order is but only one of the possible public policy reasons to support the issue of a deportation order.  See also: Bahadur, supra,at 93E-95H.

40.  Fourth, the Permanent Secretary, being required to exercise a discretion under sections 20(1)(a), 54 or 55 of the IO, is involved a balancing exercise in deciding whether to exercise the power so vested: Singh v Secretary for Security (1996) 6 HKPLR 440 at 450B-C, perKeith J; Badadur at 94I-95A; Weerachon Sae-Ieo, supra, at paragraph 46; Pollard, supra, at paragraph 60.

41.  Fifth, it is trite in public law that the principles governing the relevance of a consideration that a decision maker vested with a discretion should and could take into account are these:[4]

(1)   The decision must take into account matters clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had;

(2)   The decision maker must not take into account matters clearly identified by the relevant legislation as considerations to which regard must not be had; and

(3)   The decision maker may have regard to matters if, in its judgment and discretion, it thinks it is right to do so.

(4)   Under the above third category, subject to Wednesbury unreasonableness, what is and what is not a relevant consideration for a decision-maker to have in mind is, absent statutory code of compulsory considerations, for the decision maker not the court to decide.  Similarly, the weight that should be given to a factor which the decision maker has regarded as relevant is a matter for him, not the court.

42.  Sixth, it is well established that the Director has been vested with the power and discretion to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions.[5] Further, in the exercise of power and discretion adopts an overall restrictive immigration control policy.[6]  The legitimacy and rationality of such an overall restrictive policy control applicable to the entire immigration regime is well recognised and accepted by the courts.  It has recently received the unreserved endorsement by the Court of Appeal in the BI, supra, at paragraph 70.

43.  In this respect, under the overall restrictive immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.  Within the confines of that broad policy, the Government has formulated different more specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong.  Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes.  These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors.

44.  As mentioned by the Court of Appeal at paragraph 92(8) in BI, if an applicant does not fall within any of the recognised categories, it is up to the Director to decide whether to further consider exercising his discretion to grant the application on any humanitarian or compassionate grounds on an individual basis.  Insofar as if the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion under this if there are exceptional circumstances to justify it.  In this regard, it has also been firmly established by the Court of Final Appeal that the Director is not obliged to consider humanitarian or compassionate grounds, and if he decides not to so consider, that decision is generally not subject to judicial review.[7] However, if he does consider these grounds, subject to the challenge of any procedural unfairness, the court would not lightly interfere with his decision under these grounds on Wednesbury unreasonableness basis as the court must have regard to his wide discretion under this aspect and the context of whether the applicant merits exceptional treatment against a stringent overall immigration control policy.  See BI, supra, at paragraphs 102 - 111.

45.  Bearing these principles in mind, I now turn to look at the grounds of judicial review raised by the applicants.

C2.   Ground 1 – The Decision is unlawful since the Permanent Secretary failed to perform the balancing exercise required of him by law, and/or the exercise was in any event irrational in the circumstances of the present case

46.  Under this ground, it is contended that the Permanent Secretary failed to perform the balancing exercise required of him by law in making the Decision.  Further, it is said that in any event, the Decision is Wednesbury unreasonable in the circumstance of the present case.

47.  Mr Dykes advances his contentions on a number of premises.

48.  First, Mr Dykes submits that the Permanent Secretary exercises a balancing exercise under sections 54 and 55 of the IO in deciding whether to rescind a deportation order.  However, in doing so, leading counsel contends that the Permanent Secretary erred in law in adopting “the exceptionality approach” by reference to the strict immigration policy.  In this respect, Mr Dykes is referring to the Permanent Secretary’s evidence that, in making the Decision, he had paid regard to the overall strict immigration policy and was not satisfied that there were exceptional humanitarian or compassionate grounds shown by the applicants to justify rescinding the DO.  Mr Dykes argues that the Permanent Secretary in exercising his discretion independently should not pay heed to the overall immigration policy.  In particular, Mr Dykes emphasizes that, even if the DO is rescinded, the 1^st applicant would still have to separately apply to the Director for permission to enter and stay in Hong Kong, and the Director in assessing that permission application would in any event be guided by the prevailing relevant immigration policy he has adopted.  It therefore does not make sense, says Mr Dykes, that in considering the rescission application, the Permanent Secretary would have to take into consideration the immigration policy already.

49.  With respect, I am not persuaded by this argument.

50.  Sections 54 and 55 of the IO have not excluded immigration policy as a consideration for the Permanent Secretary in the exercise of the discretion vested in him. Hence, subject to any Wednesbury unreasonableness challenge, it is for the Permanent Secretary to decide whether he regards it as a relevant consideration. See paragraph 41 above.

51.  Whether or not a deportation order should be rescinded or suspended is clearly a matter related also to immigration control.  When the DO was first issued, as mentioned above, the Permanent Secretary has already concluded that, in the immigration control context, the 1^st applicant’s entry into and presence in Hong Kong is not desirable in light of his threat to law and order.  Hence, when considering whether the DO should be rescinded or suspended to allow the 1^st applicant to be able to apply to come to Hong Kong again, the prevailing overall restrictive immigration policy as adopted in immigration control is obviously a relevant consideration for the Permanent Secretary.

52.  Indeed, the authority of Bahadur supports that it is relevant and hence proper and permissible for the Permanent Secretary to consider a rescission application in the context of the overall immigration policy.

53.  In that case, in rejecting the applicant’s challenge of the Secretary for Security’s refusal to rescind a deportation order on the ground of Wednesbury unreasonableness, Stock J observed at 94C-95H as follows:

“The decision is not in any event Wednesbury unreasonable, and is also one which a reasonable body administering Hong Kong’s immigration laws could, on the material before it, have reached. It matters not, in other words, as far as I am concerned which test is applied, for the result is the same.

The immigration authorities in Hong Kong are daily faced with difficult immigration decisions which involve the removal of those who have family members in Hong Kong. Each case has its own story, and its own genuine compassionate circumstances, and many decisions will effect the splitting of families or the withholding of children from the care of their parents. The sad facts of Ho Ming Sai are but one example. In the present case we have a person who had no right of abode in Hong Kong; who was permitted to enter for a limited purpose, namely, employment, and was told in December 1996 that that purpose was at an end. He was therefore in Hong Kong for only so long as the immigration authorities would allow, and it was a clear condition of the permission given that he should take no employment. Yet he not only breached that condition, but he also practised a fraud on the immigration authorities. How can it then be said that no reasonable person exercising powers under the Immigration Ordinance in this small territory with peculiar and well known immigration problems, and with many thousands wishing to join their families who are living in Hong Kong – how could it be said that no reasonable Secretary for Security could have said to this man: you are no longer welcome in Hong Kong, and we do not want you to come back? What is more, the family unit in this case, which is so emphasised in support of the applicant’s argument is not itself imbedded in Hong Kong. The lady with whom the applicant lives is here on limited contracts, and will be permitted to remain for so long as her employment visa lasts. It is not suggested that she has the right of abode in this territory.

In the course of his argument on the question of unreasonableness, Mr Harris has taken me to a number of other cases. One such case was Singh v. Secretary for Security [1996] 6 HKPLR 440, where Keith J (as he then was) ruled that the making of the deportation order required the striking of a balance between the threat posed by the potential deportee’s presence in Hong Kong and the hardship which deportation would cause him and innocent third parties. Mr Harris said that the balance struck in the present case was manifestly warped. It is not suggested that compassionate factors were not taken into account. If that were the suggestion, that is clearly contraverted by the evidence. But, in any event, the weight to be given to compassionate circumstances and the weight to be given to the fact and circumstances of an offence which triggers the operation of section 20(1)(a) of the Ordinance will themselves depend on a number of factors. Persons like the applicants in Singh whose families had been ensconced here for many years and who had themselves been living in Hong Kong for 12, 16 and 22 years respectively, might reasonably expect more sympathetic consideration in the deportation context, even though convicted of an offence of violence, than a person who is here for a few months as a visitor and commits an offence, the nature of which is a fraud on the authorities. Nor does it help to take the court, as I was taken, to a decision in Australia where the court quashed a determination to deport a man who had been sent to prison for six years for a drugs offence, and to say that by comparison this applicant’s offence was much less serious. Each country has its own legislative regime and its own immigration problems, and Hong Kong is a small territory with large immigration problems.

It is said that a decision could have been made to deport the applicant for but a few months and that a life’s deportation was unnecessary. This, again, is unrealistic and ignores the immigration status of the applicant at the date of his deportation and the actual circumstances of this case. In the normal case of someone whose deportation is warranted because he has committed a criminal offence in Hong Kong, deportation is not a sentence or punishment which is there to fit the crime. Deportation is triggered because the territory has decided that it no longer welcomes that particular visitor, wants him to leave, and does not want him as a visitor again. Whilst it is open to the host territory to say to a visitor in a certain instance that it requires the visitor to leave only for so long as a particular threat exists, that is an event which will arise unusually. A deportee is, as a rule, not entitled to expect some finite period to his deportation according to the circumstances of his case. Normally, he is not welcome back, and that means what it says. It is open to him to ask in the future to be allowed to come back (s 55), and he is allowed to ask that the host country holds its hand on his proposed expulsion (s 54), but in the absence of the most exceptional circumstances, a person in the applicant’s position cannot be heard to say that he should have been deported for only six months, or 12 months.”

54.  Thus, Stock J upheld the refusal decision by having reference to the immigration context and policy in Hong Kong.  In fact, it is pertinent to note that Stock J also endorsed that it would only be in the most exceptional circumstances that a person could be heard to ask for a finite instead of life-long deportation order.

55.  Similarly, in Pollard at paragraph 62, where A Cheung J (in considering a challenge on irrationality ground of a decision to deport the applicant for life) also observed the need to have regard to the immigration context in considering whether to issue the deportation order:

“62.   Having considered the entire circumstances of the case, I do not agree that the deportation order for life is one that no reasonable person exercising powers under the Immigration Ordinance could have made.  As Stock J pointed out in Bahadur, at page 94 F to H, Hong Kong is a very small place with peculiar and well-known immigration problems, and with many thousands wishing to join their families who are living in Hong Kong.  Viewed against that background, it is quite plain that the decision to deport the applicant for life is not Wednesbury unreasonable.  This is so particularly if one bears in mind the true nature or character of a deportation order and why as a rule it is made for life, as has been explained in the earlier part of this judgment.”

56.  In any event, it certainly cannot be said in the present case that the Permanent Secretary is irrational (in public law sense) to take into account the immigration policy as a relevant consideration in considering whether to exercise his discretion to rescind the DO.

57.  Second, Mr Dykes submits that in any event it is also wrong in law for the Permanent Secretary to adopt as a threshold test the “exceptionality requirement” to consider whether there are sufficient humanitarian or compassionate circumstances to justify the rescission of the DO.  Leading counsel seeks support in these submissions by arguing that in Singh, Bahadur, Pollard and Weerachon Sae-Ieo, supra, the court has only consistently said that the balancing exercise that the Secretary for Security has to do is to weigh between the security concerns posed by the subject applicant against the hardship to be suffered by him and his family to determine whether there has been a material change of circumstances that justifies the suspension or rescission of a deportation order.  In other words, says Mr Dykes, the Permanent Secretary is only to ask whether the change of circumstances presented affects the balance struck when the deportation order was first made.  Mr Dykes emphasises these authorities show that an approach of balancing concerns of criminal and security concerns against hardship does not entail an additional requirement of exceptionality.  Moreover, Mr Dykes submits that the evidence filed in these cases as to how the decision maker had carried out his balancing exercise in each of these cases did not show that an exceptionality approach was adopted.  Leading counsel therefore says the Permanent Secretary’s present adoption of an exceptionality approach is obviously incorrect in law.

58.  I am unable to agree with Mr Dykes.

59.  As mentioned above, as a matter of principle, the exercise of the discretion under sections 54 and 55 of the IO in relation to a deportation order is guided by considerations of public interests and policy.  Unless prescribed by these statutory provisions (which is not), it is a matter for the decision maker to decide, in the context of immigration control, as to how he would be satisfied, as a matter of public policy and interests, that a deportation should be rescinded or suspended.  The discretion includes, as repeatedly held by the courts, a discretion for the decision maker to decide what weight he would attach to the relevant considerations.  In the same breath, this must also include the discretion to decide as a matter of policy as to to what extent he would only be satisfied that a deportation order should be rescinded or suspended.

60.  Hence, as a matter of principle, as a matter of policy in the context of immigration control, the Permanent Secretary must be free and entitled to adopt the exceptionality approach in his balancing exercise to guide his exercise of the discretion under sections 54 and 55 of the IO.[8]

61.  For the same above reasons, neither could this approach be regarded as Wednesbury unreasonable in immigration control context.  In this respect, it should be reminded that the courts have repeatedly said that, in the context of immigration control (including deportation order cases), the immigration authorities and the Secretary for Security are daily faced with difficult immigration decisions which involve the removal of those who have family members or relatives in Hong Kong.  In making these difficult decisions, the decision makers are guided by considerations of what are in the best interests of Hong Kong (in light her small size, geographical and economic considerations) as a matter of public policy.  The courts would not lightly interfere with these decisions in a Wednesbury unreasonableness challenge.

62.  Further, the authorities relied on by Mr Dykes also do not support his contentions.

63.  In Pollard, the applicant, an Australian national in Hong Kong, challenged the Permanent Secretary’s decision to issue a deportation order for life against him.  Again, one of the grounds of challenge was that the decision to deport him for life was Wednesbury unreasonable in light of the compassionate considerations the applicant had advanced when considered in light of the allegedly relatively minor nature of the offence he had been convicted of (as he was sentenced to six months’ imprisonment for using someone else’s credit card to settle his various hotel room bills).

64.  In this respect, it must first be noted that the evidence filed by the Permanent Secretary in that case shows that, after considering all the representations made by the applicant against deportation and having balanced the gravity of the offences, he found that “there is no sufficiently justified extenuating ground warranting exceptional consideration” to issue a deportation order for life.[9] In other words, the Permanent Secretary in that case also adopted an exceptionality approach.  Thus, it is incorrect for Mr Dykes to say that the evidence filed in this case does not show that the Permanent Secretary had adopted an exceptionality approach (albeit in the context of issuing a deportation order under section 20(1)(a)).

65.  In any event, A Cheung J (as the learned CJHC then was) rejected the complaint of irrationality in that case.  The learned judge emphasised that what weight should be given to those compassionate circumstances relied on by the applicant was a matter for the Permanent Secretary not the court and when viewed in the overall immigration policy context, the decision was not one that no reasonable person exercising powers under the IO could have made (see paragraphs 45 and 62 thereof).

66.  Pollard therefore indeed supports that it is legitimate for the Permanent Secretary to adopt an “exceptionality” approach in his balancing exercising to determine how to exercise his discretion.  If it is permissible for the Permanent Secretary to adopt an exceptionality approach to decide whether or not to make a deportation for life, I cannot see why it would be in principle wrong or not permissible for him to adopt the same approach to decide whether the original for life deportation order should be rescinded or suspended.

67.  The other three cases also do not assist Mr Dykes:

(1)   In Singh, for the present purposes, the relevant challenge was that the Secretary in deciding to issue a deportation order against the applicant under section 20(1)(a) of the IO failed to attach sufficient or proper weight to the hardship said to be suffered by the applicant and his family if he was to be deported.  In this respect, Keith J held that (a) hardship was indeed a relevant consideration for the Secretary in the exercise of his discretion (at 449B-450C); but (b) the Secretary did take that into account and nothing had been shown that he had failed to give proper or sufficient weight to this factor (at 450D-451I).  No issue had been raised on the facts of that case as to whether the Secretary had adopted an “exceptionality” approach in the balancing exercise, and thus nothing is decided as to whether this is permissible. This case therefore does not support Mr Dykes’ submissions.

(2)   In Weerachon Sae-Ieo, the applicant, a teenager Thai national, challenged the deportation order for life made against him as unreasonable. He said when his young age and the fact that most of his family and close relatives were in Hong Kong were balanced against the relatively allegedly minor nature of his convicted offence (he was only sentenced to six months’ imprisonment for possession of a dangerous drug “Ice”), the issue of the deportation order for life was clearly irrational.  Hartmann J rejected his judicial review.  Again, no evidence and no argument were raised on the facts of this case as to whether it was proper for the Secretary to adopt the exceptionality approach in the balancing exercise.

(3)   In Bahadur, the issue raised was whether there was procedural irregularity of apparent or actual bias when the Secretary for Security who refused the applicant’s rescission of deportation order application was acting as the Director of Immigration a few months ago when it was then her subordinate in the Immigration Department who recommended to the then Secretary the making of the deportation order in the first place.  Clearly no issue or question arose in that case on the evidence and arguments as to whether the Secretary adopted an exceptionality approach in her balancing exercise under section 55 of the IO.  Thus, the court was not required to decide this question at all.  This authority therefore also provides no support one way or another to Mr Dykes’ above submissions.  To the contrary, as I mentioned above, Stock J held in that case that the Secretary is entitled to only consider issuing a finite deportation order in the most exceptional circumstances. This in fact supports the Permanent Secretary’s present adoption of the exceptionality approach.  See the court’s observations at paragraphs 64 ‑ 66 above.

68.  In the premises, I conclude as a matter of principle, that it is within the Permanent Secretary’s discretion to adopt as a matter of policy considerations an exceptionality approach to consider whether to exercise his discretion under sections 54 and 55 of the IO.  I therefore reject Mr Dykes’ submissions that the Permanent Secretary erred in law in adopting an exceptionality approach in the balancing exercise.

69.  Third, Mr Dykes says even if the Permanent Secretary’s above policy in adopting the exceptionality approach does exist and is lawful, for fairness it needs to be published so that the individual will know what representations will be on target and what representations are not to the point.  In failing to have it published, the Decision made thereunder is unlawful for being unfair.

70.  There is nothing in this point.  As the Court of Final Appeal affirmed in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraph 66, per Ribeiro PJ: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers”.

71.  Fourth, the applicants submit that the Permanent Secretary in considering the rescission application has a legal obligation to have had regard, and thus give significant weight, to the applicants’ purported rights to family and their child’s best interest as enshrined respectively under Articles 25, 36, 37 and 39 of the Basic Law, Articles 1, 14, 19(1), 20(1) and 22 of the Hong Kong Bill of Rights, Articles 2, 17, 23(1), 24(1) and 26 of the International Covenant on Civil and Political Rights, Articles 2(2) and 10 of the International Covenant on Economic, Social and Cultural Rights, and Articles 1 - 7, 9 and 18 of the Convention on the Rights of the Child.  Mr Dykes says the Permanent Secretary however had failed to do so.  In particular, Mr Dykes emphasizes that the Permanent Secretary had failed to treat these considerations as “legal rights” and thus to attach to them the proper weight as such.  For convenience, I would refer these rights collectively as “the Asserted Rights”.

72.  There are no merits in these submissions.

73.  This court has already repeatedly concluded that the Asserted Rights are not engaged as a matter of law in the context of immigration policy considerations.  Hence, the Director is therefore under no legal obligations to take into account the Asserted Rights when considering applications made under the dependency policy or permissions to enter and remain in Hong Kong outside any established immigration categories under the general immigration policy.  See: paragraphs 58 - 188 of Pagtama v Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016); paragraphs 20 - 57 of Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016) and paragraphs 46 - 52 of LK v Director of Immigration (HCAL 77, 98 and 100/2014, 9 August 2016).

74.  There are no in principle reasons why the same analysis in those cases do not apply to a consideration made in relation to the issue, rescission or suspension of a deportation order.  As I mentioned above, applications made in relation to a deportation order are similarly made in the context of immigration control.  It is also perfectly legitimate for the Permanent Secretary to have regards to the immigration policy in considering deportation order related applications.  In the premises, the Permanent Secretary is similarly not under any legal obligations to consider the Asserted Rights.

75.  I would similarly reject this contention.

76.  Fifth, Mr Dykes argues that the Permanent Secretary in making the Decision failed to take into account the material change of circumstances concerning the applicants since the issue of the DO.  In particular, these material changes include the fact that the applicants have since been married and the child was born.

77.  There are no merits in this.

78.  The Permanent Secretary is only required to take into account any relevant change of circumstances made known to him in the rescission application.  The evidence shows that the Permanent Secretary took into account all the applicants’ representations made in their solicitors’ letter dated 16 July 2014 and the 2^nd applicant’s subsequent letters dated 15 October and 6 November 2014 (see paragraph 30 above).  These included the material representations that the applicants were by then married, they were expecting to have the child born in Hong Kong, their wish to live in Hong Kong together as a family and to raise the child in Hong Kong, the 2^nd applicant was suffering medical complications in her pregnancy, and had fallen out with her parents and therefore would not be able to rely on them to help her and to raise the child, and the 2^nd applicant’s reluctance to move to India.  The Permanent Secretary had therefore taken into account all the changes of circumstances as made known to him.

79.  I reject this contention.

80.  Finally, Mr Dykes says the Decision is in any event Wednesbury unreasonable.  He submits that when the relatively minor nature of the offence committed by the 1^st applicant (as reflected by the 6-month imprisonment) is weighed against the applicants’ marriage, the tender age of the child, and the fact that the Decision has the effect of separating the family, the Decision must be regarded as irrational.

81.  With the greatest respect, there is no substance in this submission.

82.  Given the strict immigration policy, the overall security concern on the threat to law and order, and the fact that the applicants were fully aware of the existence of the DO for life when they got married, it clearly cannot be said that no reasonable person in the position of the Permanent Secretary would have come to the same conclusion that the applicants’ circumstances do not amount to exceptional compassionate or humanitarian circumstances to justify a rescission of the DO.  This is particularly so in light of (a) the 1^st applicant’s records of twice failing to answer recognizance; and (b) his second conviction of the offence of “Possession of a dangerous drug”, which was committed while he was still under recognizance and when it was only about one and half year after he had finished serving his imprisonment sentence under his first conviction.

83.  In this respect, Mr Dykes has asked me to apply a vigilant or anxious scrutiny to assess whether the Decision is irrational for the reasons he has submitted. Although A Cheung J in Pollard at paragraph 56 has said that no anxious scrutiny is warranted in examining a deportation order decision, I must emphasise that I would also arrive at the same conclusion as above that the Decision cannot be said to be irrational even if I was to apply a vigilant scrutiny of the Decision.

84.  For the above reasons, I reject the applicants’ first ground of judicial review.

C3.   Ground 2 – Legitimate expectation

85.  Under this ground, the applicants say the Decision frustrated their legitimate expectation that the Asserted Rights should be taken into account by the Permanent Secretary in considering the rescission application.  See paragraphs 65 and 66 of the Form 86.

86.  For the same reasons above in rejecting the contentions that the Permanent Secretary has a legal obligation to consider the Asserted Rights, there is no question of the existence of the legitimate expectation as contended for.  This ground similarly must fail.

C4.   Ground 3 – Procedural impropriety

87.  The applicants argue in this ground that the Decision is tainted with the following procedural unfairness:

(1)   Before making the Decision, the applicants should have been first informed of the Director’s suggestion or comment that the 2^nd applicant could take the baby and reunite with the 1^st applicant outside Hong Kong should she wish to do so, so that she could properly respond to that.

(2)   The Decision is inadequately reasoned.

88.  There is nothing in this ground

89.  In making the rescission application, it is up to the applicants to advance all relevant representations and matters which are objectively and reasonably within their expectations to be relevant and of concern to the Permanent Secretary.  Cf: Pagtama, at paragraph 214.

90.  In this respect, it is their own representation in support of the rescission application that they wanted to raise the child in Hong Kong for various reasons.  It must therefore be reasonably within their contemplation that questions might be raised by the Permanent Secretary as to why the child could not be taken outside Hong Kong and reunited with the 1^st applicant.  It is thus up to them to explain in their application the reasons why it is not feasible to do so. There is no duty or obligation for the Permanent Secretary to raise that question with them, and hence there is no procedural unfairness in this respect.

91.  I also accept Mr Chang’s submissions that the complaint that the Decision was “sparely reasoned” is similarly untenable:

(1)    The Permanent Secretary was generally under no duty to give reasons when dealing with an alien’s application to be allowed to come in and stay in Hong Kong: BK & CH v Director of Immigration, HCAL 24 & 31/2009 (unreported, 5 January 2010) at paragraph 69, per A Cheung J (as the learned CJHC then was); Nisa Azizan & Anor v Director of Immigration & Anor, HCAL 203/2015 (unreported, 15 April 2016) at paragraph 47, per Chow J.

(2)    Further, a “reasons challenge can only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision”: Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006 (unreported, 6 November 2007) at paragraph 30, per A Cheung J.  The applicants did not suggest that the Permanent Secretary’s letter dated 28 November 2014 setting out the impugned decision had in any way genuinely or substantially prejudiced them.

(3)    In any case, having regard to the disclosure of the internal minutes and the affirmations filed herein on behalf of the Permanent Secretary, the basis for the impugned decision is beyond doubt and the Court would not have exercised its discretion to grant any relief on this basis alone given this would be entirely academic: Hong Kong Television Network Limited v Chief Executive in Council[2015] 2 HKLRD 1035 at paragraphs 101 - 102, per Au J; Pollard, supra, at paragraphs 51 - 53.

C5.   Conclusion

92.  For all the above reasons, the applicants fail in all the grounds of judicial review.  This application should thus be dismissed.

D.   DELAY

93.  By a summons taken out on 11 February 2016, the Permanent Secretary also applies to set aside the leave for judicial review granted on the ground of delay.

94.  It is trite that an applicant shall take out an application for leave to apply for judicial review promptly and in any event not more than three months after the challenged decision is made.  No leave should generally be granted after the 3-month period unless the applicant can satisfy the court that there are good reasons for extending the time.  See: Order 53, rule 4 of the Rules of the High Court; AW v Director of Immigration [2016] 2 HKC 393 (CA) at paragraphs 23 - 36.

95.  In the present case, the Decision was made on 28 November 2014.  The leave application should be made by the end of February 2015 to be within the 3-month time limit. However, the leave application was only made on 29 June 2015, and hence there is a four months’ delay.  The Permanent Secretary therefore applies to set aside the leave on the basis that no extension of time should be granted to the applicants.

96.  Before I look at the merits of this setting aside application, the applicants object to it on the preliminary basis that it was not made timeously and the court should not entertain it at this stage of the substantive hearing of the judicial review absent any special circumstances.

97.  As the Court of Appeal said in BI, supra, at paragraphs 134 - 139, it is a matter of case management to decide whether to entertain a leave setting aside application at the substantive hearing, although generally such an application should be made and dealt with promptly after leave has been granted.

98.  In relation to the present case, leave was granted on 7 September 2015.  The Permanent Secretary filed his full evidence in opposition about four months later on 11 February 2016.  Given that full evidence has already been filed fairly soon after leave, and the court in determining whether to extend time for a delayed application may have to examine the merits of the applicants’ substantive challenge deeper than the standard applicable to granting leave,[10] I am satisfied that as a matter of case management, it is convenient and appropriate in the present case to hear the setting aside leave application at the same time of the substantive hearing.  This is particularly so as, given the various grounds of challenges raised in this judicial review, and the need to examine deeper their merits to decide whether time should be extended, the court would be assisted with the Permanent Secretary’s full evidence.  Once such evidence has been so filed, it would not necessarily save time and costs by having potentially two hearings (if the setting aside application fails at a separate and earlier hearing).

99.  I would now proceed to look at the setting aside application itself.

100.  The principles governing the extension of time have been set out by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraphs 36 - 45 (affirmed and endorsed by Court of Appeal in AW, supra, at paragraph 1, per Lam VP, and paragraphs 23 - 36, per Kwan JA). These can be summarised as follows:

(1)   Although Order 53, rule 4(1) of the Rules of the High Court sets down a three-month limit, the primary requirement is promptness.  The applicant cannot wait until the three-month period is drawing to a close before springing into action.

(2)   Unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions put into uncertainty many months after they have been made.

(3)   While the court has power under Order 53, rule 4(1) of the Rules of the High Court to extend time, the power is only to be exercised if “good reason” is shown.

(4)   The following factors are likely to be significant in assessing whether there is good reason for time extension:

(a)   The length of delay.  The longer the delay, the more cogent the reason required for extending time.

(b)   Whether there is a credible and valid explanation for the delay.

(c)   The merits of the substantive application.  In this regard it is important to recall Litton NPJ’s statement in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B-C that where an applicant is many months late, leave may be refused “however strong the complaint might otherwise be”.  See also Hartmann J (as he then was) in Law Chun Loy v Secretary for Justice HCAL 13/2005, 26 October 2006 at paragraph 13.

(d)   Prejudice (to the applicant if extension refused; to the authority if extension allowed).

(e)   Whether the application raises question of general public importance and whether those issues are likely to have to be resolved by the courts in any event.

101.  In explaining the delay, the applicants in the present case in substance say that the delay was caused by the process of the legal aid application, and the 2^nd applicant had indeed acted expeditiously and diligently in applying for legal aid in the circumstances of her case.

102.  In this respect, the chronology of events concerning the legal application as confirmed by the Legal Aid Department (“LAD”) is as follows:

“(1) 28 November 2014 - The Security Bureau refuses to rescind the deportation order made against Mr. Sabir.

(2) 5 December 2014 - Ms. Wong visited the Legal Aid Department (LAD) in Queensway to pick up application forms for legal aid.

(3) 4 February 2015 - Ms. Wong submitted application forms to LAD in Mong Kok.

(4) 5 February 2015 - We made inquiries with the Security Bureau regarding Ms. Wong’s case.

(5) 9 February 2015 - Ms. Wong provided the documents and grounds requested by LAD.

(6) 3 March 2015 - The Security Bureau delivered documents to LAD.

(7) 13 March 2015 - Offers of Legal Aid were made to both Mr Sabir and Ms Wong. Nomination of Solicitors were provided by them.

(8) 17 March 20l5 - LAD Called Ms. Wong regarding their nominations of Solicitor. Mr. Sabir signed an authorization for Ms. Wong to act on his behalf on the same day.

(9) 18 March 2015 - Mr. Mark Daly of Daly & Associates has been assigned as solicitor for Ms. Wong and Mr. Sabir after Ms Wong confirmed in writing that she has no objection for us to choose a solicitor on their behalves.

(10) 27 March 2015 - Daly & Associates accepted the assignment.

(11) 13 April 2015 - Daly & Associates requested assignment of counsels.

(12) 16 April 2015 - Assignment of leading and junior counsels.”

103.  The 2^nd applicant has further explained why she was only able to formally put in the legal aid application on 4 February 2015 (ie, some two months after the Decision) and the requested documents and grounds to the LAD on 9 February 2015.  The reasons are these:[11]

(1)   She was only first notified of the Decision by her then solicitors on 3 December 2014 and received the letter of the Decision on 4 December 2014.  Although in her late stage of pregnancy, she still immediately went to see an officer of the Security Bureau on 5 December 2014 to inquire about the Decision.  She was then advised to apply for legal aid and to apply for judicial review if she was not satisfied with the Decision.  She collected the legal aid application forms from the LAD on the same day.

(2)   However, she was so emotionally disturbed because of the Decision, and could not sleep during the weekend of 6 and 7 December 2014.  Then, she was admitted to Kwong Wah Hospital on 8 December 2014 for pregnancy related conditions, where induced labour was eventually carried out and her son was born on 10 December 2014.  She was discharged from hospital on 12 December 2014, but the baby had remained in hospital until 13 January 2015.  As she had to go to hospital to visit the baby during this period, and she was just recovering physically from giving birth and the complications she had suffered, she was unable to send the legal aid application form to the 1^st applicant in India until mid January 2015 after the baby was discharged.  It took five to six days back and forth for the documents to be sent to India and back to Hong Kong.

(3)   On 4 February 2015, she took the signed application forms to the LAD.  She was told that the forms were incomplete and that she needed to also bring a document setting out the written grounds in support.  Taking into account the time required to send the additional forms back and forth to the 1^st applicant in India, she eventually managed to provide the LAD with the completed additional forms and the written grounds and reasons supporting her application for legal aid on 9 February 2015.

104.  Mr Chang for the Permanent Secretary however submits that the applicants have failed to show good reasons for the delay.  In particular, Mr Chang submits it is trite that generally the mere fact that legal aid or pro bono assistance is not available is not regarded as a sufficient basis for an extension of time; TH & TLT v Director of Immigration, HCAL 114/2014 (unreported, 20 July 2015) at paragraph 74, per Chow J.  See also AW, supra, where Kwan JA held that the time taken to apply for and obtain legal aid (paragraph 37) and the time taken to apply for extension of the scope of legal aid and to make legal aid contribution (paragraph 49) could not constitute valid grounds justifying any delay, notwithstanding hat such matters may be beyond the applicants’ control.

105.  Moreover, Mr Chang submits that in any event, all the explanations provided by the applicants above in relation to why the legal application could only be properly made by 10 February 2015, even if accepted as good reasons, could not explain the three and a half months’ delay in filing the leave application after legal aid was efficiently granted on 18 March 2015.  When this lack of good explanations is considered together with the lack of merits in the grounds of judicial review, Mr Chang contends that no leave to apply for judicial review out of time should have been granted.

106.  The explanations for the three and a half months’ delay after the grant of legal aid are provided in the 1^st Affidavit of Ambelang (a paralegal of the applicants’ present assigned firm of solicitors) at paragraphs 8 - 13 as follows:

“8. I refute the Respondent’s allegation as set out in paragraph 34 of the Affirmation of Ng Yin Ha Windsor dated 5 February 2016 that no good reason was put forward as to why it took the Applicants a further period of 3 ⅓ months after the grant of legal aid to file their present challenge. To this allegation, I wish to refer to paragraphs 28 to 33 of the Form 86 as stated above.

9. I refer to paragraph 35 of the Affirmation of Ng Yin Ha Windsor whereby the Respondent queried why the data access requests were not made immediately after the granting of legal aid. As the Respondent is well aware, the Applicants were represented by their previous lawyers Messrs. Weir & Associates at least up to the point of the refusal decision dated 28 November 2014; the refusal decision was sent to their offices by the Security Bureau.

10. Upon receipt of the legal aid assignment which arrived by post on 23 March 2015, the Firm met with the 2^nd Applicant on 27 March 2015 to obtain her instructions and to obtain information about the Applicants’ case as well as to obtain authorization for the necessary data access requests. It was important for the Firm to obtain the personal data of the Applicants held in the file(s) of the various authorities to gain more insight into the Applicants’ case and cross-check with the Applicants’ instructions.

11. As the 1^st Applicant is outside Hong Kong and is not allowed to return to Hong Kong, the 2^nd Applicant required time to obtain his signatures on the data access requests before they could be submitted together with hers as a couple so as to avoid redaction of their own information on each other’s file. On receipt of the signed forms from the 2^nd Applicant, the Firm made the requests to the Security Bureau and the Immigration Department on 1 April 2015. I note that there were the intervening Easter holidays during this time, and the request for assignment of Counsel was made on 13 April 2015.

12. Upon receipt of the copies of personal data from the Immigration Department on 7 May 2015 and from the Security Bureau on 21 May 2015, the Firm prepared a brief to the assigned Counsel. I note that during this time there was an extended weekend as a result of the public holiday of Buddha’s Birthday on May 25. All relevant papers were delivered to both assigned Counsel on 28 May 2015. On 9 June 2016, the Firm received Counsel’s first draft of the Form 86 and the Affirmation of the 2^nd Applicant together with requests for clarification from the 2^nd Applicant on a number of key points.

13. Between 12 June 2015 and 26 June 2015, the Firm attended on the Applicants on various occasions both in person and over the phone to obtain and clarify their instructions. After numerous exchanges with Counsel, the Form 86 and supporting affirmation were finalized on Friday 26 June 2015 and filed on Monday 29 June 2015.”

107.  In my view, given the very exceptional circumstances of the present case in light of the 2^nd applicant’s then pregnancy and medical conditions, and the fact that the 1^st applicant was in India and thus it had required additional time to communicate with him and to obtain his relevant signatures and authorisation, I accept the above explanations provided by the 2^nd applicant and the firm as good reasons for the delay in the special context of this case.  Further, in light of the special circumstances of the present case, I accept that the 2^nd applicant had acted promptly in seeking to pursue her right by approaching the Security Bureau and then applying for legal aid.  When these are all considered against the four months’ delay, I am prepared to exceptionally grant an extension of time to the applicants to apply for judicial review.  As a result, I would not set aside the leave granted on the basis of the delay.

E.    DISPOSITION

108.  For all the above reasons, the applicants fail in all their grounds of judicial review.  This judicial review should be dismissed.  There be an order nisi that costs of the judicial review application be to the Permanent Secretary to be taxed if not agreed.

109.  The court also dismisses the Permanent Secretary’s Summons seeking to set aside leave and the costs thereof (on a nisi basis) be to the applicants, to be taxed if not agreed, with certificate for two counsel.

110.  The applicants’ own costs be taxed in accordance with legal aid regulations.

111.  It remains for me to thank counsel’s assistance in this matter.