JAVID KAMRAN v. COMMISSIONER OF REGISTRATION AND ANOTHER

CACV 131/2021

[2021] HKCA 1830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2021

(ON APPEAL FROM HCAL NO 1324 OF 2019)

________________________

________________

____________________

J U D G M E N T

____________________

Hon Coleman J (giving the Judgment of the Court):

A.   Introduction

1.  By a Notice of Appeal dated 25 March 2021, the applicant appeals against the Decision of K Yeung J dated 23 March 2021 in HCAL 1324/2019, [2021] HKCFI 747 (“Decision”).  Though HCAL 1324/2019 was heard together with two other applications (HCAL 1619/2019 and HCAL 2220/2019), which were also dealt with in the Decision, those other matters are not the subject of this appeal.

2.  The applicant is a Pakistani national who has been staying in Hong Kong since 1998 on and off.  He applied for a Hong Kong Permanent Identity Card (“PIC”) from the Commissioner of Registration (“Commissioner”), but this was rejected on 16 November 2017.  He appealed the Commissioner’s decision to the Registration of Persons Tribunal (“Tribunal”) in the same year.  The appeal was heard on 15 June and 22 August 2018.  By decision dated 15 April 2019, the Tribunal confirmed the Commissioner’s rejection.  The Tribunal’s key finding was that the applicant had not met the 7-year ordinary residence requirement.

3.  The Commissioner’s decision on 16 November 2017 and the Tribunal’s decision dated 15 April 2019 were the impugned decisions identified in the Form 86 of HCAL 1324/2019.  In his Decision, K Yeung J held that the intended challenge to the tribunal’s decision was not arguable, and he refused leave to apply for judicial review.

4.  An oral hearing of this appeal was held on 30 November 2021.  The applicant appeared in person.  The Tribunal previously indicated that it would take a neutral stance as usual, and its appearance was excused.  The Commissioner opposed the appeal and was represented by Ms Jenny Cheung, Senior Government Counsel (Ag.) of the Department of Justice (“DOJ”).

B.   Background

5.  The Judge set out a detailed summary of the facts in §§8-49 of the Decision, which can be read in full.  The following is a precis of that summary, with some supplement from the affirmation evidence filed by the Commissioner in HCAL 1324/2019.

6.  The applicant entered Hong Kong as a visitor in March 1998.  He entered on a Pakistani passport under the name of Ahmed Kamran.  During his stay, he was convicted of (a) theft (of a Pakistani passport belonging to another person) and (b) breach of condition of stay.  That resulted in a deportation order being issued against him on 30 May 2000, prohibiting the applicant “from being in Hong Kong at any time thereafter”.  The applicant was deported in June 2000.

7.  The applicant entered Hong Kong again in October 2001, under a different (his current) name and using a different passport from his previous visit.  In the previous month, in Pakistan, he had married a Hong Kong permanent resident, and was subsequently granted limit of stay from April 2002 to April 2006 as a dependant.  However, in 2003 and 2004, he was convicted of various criminal offences resulting in his imprisonment until 6 February 2008.  Upon his arrest, the authorities discovered that he was the subject of a deportation order.  From 2004, the applicant repeatedly requested the Government to suspend or rescind the deportation order, and requested that he be allowed to stay in Hong Kong.

8.  Ever since his release from prison on 6 February 2008, the applicant has been staying in Hong Kong.  The nature of his stay in Hong Kong from 6 February 2008 was at the centre of the dispute in the Tribunal and the Court below.  The Judge divided the whole period into three parts, (a) the “Detention Period” from 6 February 2008 to 14 November 2008 where he was detained by the Director or Immigration pending deportation until he was released on recognizance, (b) the “Waiting Period” from 14 November 2008 to 22 February 2012 where his request for the rescission or suspension of his deportation was not yet acceded to by the Government, and (c) the “Suspension Period” from 23 February 2012 to 22 February 2018 where the Permanent Secretary for Security suspended the deportation order. The deportation order was revived on 23 February 2018.

9.  The applicant argued in the Tribunal and before the Judge that all of the three Periods should count towards the required 7-year ordinary residence.  The Commissioner’s position was that the deportation order was in force during the Detention Period and the Waiting Period, and this would prevent the applicant’s stay from qualifying as ordinary residence.  The applicant’s landing in October 2001 when he was still a deportee was also unlawful.  The applicant was granted a dependant visa on 10 July 2012 and re-entered Hong Kong lawfully on the strength of that visa on 31 August 2012, and this, in the Commissioner’s view, was the starting date for counting ordinary residence.

10.  The applicant’s second argument was that the Permanent Secretary for Security already had sufficient information to suspend the deportation order as early as 5 July 2010 and thus the deportation order should have been taken to have been suspended and his ordinary residence to start from that date.  The applicant had also made a torture claim in 2006.  The Government’s position was that the applicant’s request for rescission or suspension of the deportation order could not be processed pending the resolution of the torture claim, because the applicant relied on the same set of facts in both applications.  But the applicant, then legally represented, took the position that he refused to take any torture claim interviews until his request for rescission/suspension was answered.  Things remained at an impasse until February 2010, when the Secretary for Security informed the applicant that his request for rescission /suspension of the order would be processed without taking into account his torture claim.

11.  The Government’s internal records show that the Director recommended the suspension of the deportation order by a memo dated 5 July 2010 and the Permanent Secretary for Security eventually decided to suspend the deportation order on 23 February 2012.  Between 5 July 2010 and 23 February 2012, the Secretary was, for various purposes, in correspondence with different departments, including seeking legal advice from the DOJ and enquiring of the Director about the progress of the applicant’s torture claim.  The applicant withdrew his torture claim on 27 January 2012.  The Secretary sought the Director’s comments on that withdrawal and eventually decided to suspend the deportation order on 23 February 2012.

12.  The reasons for the suspension were mainly to allow the applicant to support his wife and his three children.  It was revealed in January 2018 that the applicant had married a second wife (under Islamic law) in 2016 and had a child born in the Philippines. The applicant also spent a substantial period out of Hong Kong in the preceding 2 years.  The Secretary did not think the applicant could continue to support his Hong Kong family under the new matrimonial situation.  The deportation order was thus revived from 23 February 2018 onwards.

13.  The applicant also relied on humanitarian and compassionate grounds.

C.   The Decision

14.  The applicant’s intended grounds for review for HCAL 1324/2019 were set out in §55 of the Decision. They were a re-run of the arguments put forward before the Tribunal.

15.  The Judge rejected all intended grounds: see §§60-86 and §88(c) of the Decision.  He agreed with the Tribunal that the 7-year ordinary residence requirement was not met.  His reasoning ran as follow:

(1)  persons not of Chinese nationality who have entered Hong Kong with valid travel documents and have ordinarily resided in Hong Kong continuously for not less than 7 years and have taken Hong Kong as their place of permanent residence qualified to be a permanent resident under Article 24(4) of the Basic Law;

(2)  these exact requirements are adopted in §2(d) of the Schedule 1 of Immigration Ordinance Cap 115 (“IO”);

(3)  section 2(4)(a) of the IO disqualifies a person who has landed in Hong Kong unlawfully from being treated as ordinarily residing in Hong Kong;

(4)  section 20(7) of the IO invalidates any permission or authority to land or remain in Hong Kong that might have been given before;

(5)  the validity of the deportation order issued in May 2000 has never been challenged;

(6)  the effect of the deportation order was for life;

(7)  there was no evidence to suggest that there was delay by the Security Bureau in making the decision to suspend the deportation order in February 2012;

(8)  the decision in February 2018 not to suspend the deportation order was not challenged in the proceeding before the Tribunal or the leave application before the Judge;

(9)  in light of the forgoing, both the Detention Period and the Waiting Period (ie. from 6 February 2008 to 22 February 2012) could not count towards the 7-year ordinary residence requirement, and the period of continuous ordinary residence that started in 2012 came to an end on 23 February 2018 when the deportation order was revived.

16.  The Judge also disposed of the applicant’s reliance on humanitarian and compassionate ground.  The Judge was of the view that any ground on the basis that the Tribunal’s decision was Wednesbury unreasonable in relation to the consideration of humanitarian and compassionate grounds was not reasonably arguable.  This point was not relied upon by the applicant as a ground of appeal.

D.   Grounds of Appeal

17.  The grounds of appeal in the materials attached to the Notice of Appeal can be summarized as follows.

18.  The applicant mainly relied on the fact that the Director had recommended suspension by memo as early as 5 July 2010.  The grounds relied upon by the Director to recommend suspension in the 5 July 2010 memo are the same as those relied upon by the Director to recommend suspension again in February 2012, which eventually led to the Secretary's decision in the same month to suspend the deportation order.  The delay was unreasonable, unfair and improper.  The applicant said that in his own experience, the Secretary would usually make a decision within 2 to 6 weeks after the recommendation of the Director.

19.  He also said that he has stayed in Hong Kong lawfully since 13 November 2008 (ie. upon release from detention pending deportation by the Director) because that was with the permission of the Director.  When the Director allowed him extension of stay on 10 July 2012, the Director did not require lawful entry.

20.  He argued that the waiting period should be counted for ordinary residence because the waiting period eventually resulted in his deportation order being suspended.  As early as 2004, he applied for suspension or rescission of his deportation order lawfully under sections 54-55 of the IO.

21.  He also said that his request for suspension or rescission of the deportation order is unrelated to his torture claim.  References were made to the Secretary saying that he would process the request for suspension/rescission without taking into consideration of the torture claim by letter dated 15 March 2010.  (We note that there was no further development on this point in argument.)

E.   Is there merit in this appeal?

22.  One would not expect the applicant, acting in person, to be able to make submissions as lawyers do.  But the following strands of arguments can be identified from his Notice of Appeal, his written submissions filed on 27 October 2021 [and his oral submissions at the hearing].

23.  First, he repeated his argument that both the Detention Period and the Waiting Period should count as ordinary residence.  On top of what had already been discussed in the Decision, he also said that his stay after he was released from detention upon recognizance was lawful.  His entry in 2001 was also lawful because the passport he used was accepted by the Director as a valid travel document at the point of entry.  He also said that it was wrong for the Judge to rule that section 2(4)(a) and section 20(7) of the IO should still operate to render his entry into Hong Kong in 2001 and the subsequent stay from February 2008 to February 2012 unlawful.

24.  There is no merit in this argument.  The Judge correctly applied the law regarding a deportation order and its effect under section 2(4)(a) and section 20(7) of the IO.  The applicant seems to have mistakenly supposed that the fact that his stay was tolerated necessarily meant that the stay was lawful, or that the fact that he was allowed entry in 2001 (when his status as a deportee was concealed) must mean that such an entry was lawful.

25.  Second, the applicant again argued that his ordinary residence should start from 5 July 2010 when the Director internally recommended suspension of his deportation order.  The applicant went into great length on this ground in his skeleton argument, emphasizing also that it had been said that the suspension would be considered without regard to the then extant torture claim.

26.  The Judge has found that there was no evidence of delay since multiple steps had been taken within the Government after the 5 July 2010 memo and the applicant only withdrew his torture claim in January 2012 (§85 of the Judgment).  These are factual findings and this Court, exercising its appellate jurisdiction, will not lightly interfere with the Judge’s Decision, and in any case we see no reason to do so.

27.  In his submissions, the applicant asked this Court to ask the Government to produce information regarding the decision making process, including the production of legal advice sought from the DOJ. This should have been done in the Court below following the proper procedure under Order 53 rule 8. The appellate courts are not the venue for the applicant to gather evidence to support his application.

28.  In any event, as has been pointed out by the Tribunal (at §28), the Tribunal has no jurisdiction to review the administrative acts of the Government, including the legality of the deportation order issued (if raised) and the alleged delay in deciding to suspend the order.  The Tribunal’s jurisdiction is governed by section 3D of the Registration of Persons Ordinance Cap 177:

(1)  The Tribunal shall have jurisdiction to hear and decide any appeal by a person who is aggrieved by a decision of a registration officer not to issue a permanent identity card to that person, or to declare a permanent identity card issued to him to be invalid.

……

(4)  An appeal under subsection (1) may only be brought by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.

29.  The Tribunal’s jurisdiction is limited to deciding if the applicant, on the facts of his case, enjoyed right of abode (and thus is entitled to a permanent identity card) in accordance with §2(d) of the Schedule to the IO, which is identical to Article 24(4) of the Basic Law.  The issuance, suspension and revival of a deportation order are administrative actions taken by the Secretary, the legality or validity of which can only be challenged by way of judicial review.

30.  Indeed, it appears that the applicant noted the Tribunal’s comments.  On 23 October 2020, the applicant filed a further Form 86, in HCAL 2152/2020, to seek leave to challenge the Secretary’s further decision dated 3 August 2020 not to suspend his deportation order.  The application was rejected by the same Judge in [2021] HKCFI 748.  HCAL 2152/2020 is currently under appeal in CACV 144/2021, which was heard on 24 August 2021 before a differently constituted Court (judgment is awaited), but that has no bearing on the present appeal.  A successful appeal in CACV 144/2021 could not cure the break in ordinary residence resulting from the revival of the deportation order in February 2018.

31.  The Judge below also considered the delay argument for the benefit of the applicant acting in person.  Whilst the Tribunal has no jurisdiction to decide if the Secretary had delayed in deciding to suspend the deportation order, the Court does, albeit the applicant did not identify that decision specifically when mounting his challenge in HCAL 1324/2019, and a direct challenge would now be long out of time.

32.  In his supplemental written submissions filed shortly before the hearing, the applicant referred to the case of Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278 at 286G.  The Court of Final Appeal held that because the deportation order in that case had been rescinded, it was to be ignored for all purposes.  The applicant submitted that the suspension of his deportation order is analogous, and the order should therefore also be ignored for all purposes.  However, we are of the view that the rescission of a deportation order – which means it is treated as never having been in place at all, and hence can be ignored for all purposes – is different from the (mere) suspension of a deportation order.  A suspended order remains valid and in place, but its operation is suspended unless and until the suspension is removed, as happened in this case.

F.   Conclusion

33.  The appeal is therefore dismissed.

34.  Ms Cheung asked for an order that, in the event of the appeal been dismissed, costs should follow the event so that the applicant should pay the respondent’s costs to be assessed on a summary basis. However, in the circumstances of this case, and in the overall exercise of the Court’s discretion, we make no order as to costs.