PUJARA PRAKASH KHUSHALDAS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1594/2021

[2022] HKCFI 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1594 OF 2021

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J U D G M E N T

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A.  Introduction

1.  The applicant is an Indian National who has been residing in Hong Kong since 1991.  On 23 November 2021, he filed a Form 86 and a supporting affidavit.  Reading together the Form 86 and the affidavit, the decisions he seeks to challenge can be identified as (a) the Director’s decision dated “October 2012” to “revoke [his] visa and resident permit” and (b) the decision made by the Permanent Secretary for Security dated 8 October 2021.

2.  I directed the Director and the Permanent Secretary to file and serve an Initial Response and the putative respondents have duly done so.  Both putative respondents are represented by Ms Karen Ngai, Senior Government Counsel (Ag.).  Ms Ngai informed the Court that the Director had made no decision against the Applicant during the period of “October 2012” but on 8 October 2021, the Permanent Secretary had made (a) a deportation order against the Applicant, and (b) a detention order pending deportation.  Ms Ngai invited the Court to dismiss the application.

3.  Leave was also granted for the Applicant to file and serve a reply, but no reply has been filed by the deadline.

4.  Having considered all the materials before the Court, I am satisfied that this case can be properly dealt with on paper.

B.  The Applicant’s Background

5.  The applicant was born in India in 1979.  In 1991, he entered Hong Kong on the strength of a dependant visa.  The sponsor was his father.  His father returned to India in 1992 but the applicant was granted extension of stay in 1993, with his mother as the sponsor.  The applicant’s dependant visa was then renewed several times and last extended to 12 May 2010.  After that, his dependant visa was never extended, and he has been overstaying in Hong Kong ever since.

6.  The applicant applied to extend his dependant visa in 2013 but his application was cancelled by the Director in 2014 after the applicant failed to respond to 5 letters issued by the Director seeking supporting documents and information.

7.  The applicant applied for extension again in 2016.  This application was also cancelled by the Director in 2017 after the Director sent 4 letters to chase the applicant for outstanding documents and information but received no response.

8.  The applicant has been convicted and sentenced to imprisonment many times over the decades.  I shall take from the table which was helpfully produced by Ms Ngai in her Initial Response:

Date of Sentence	Offences	Sentence
21.7.1995	Robbery	Admitted to Training Centre.
27.11.1995	Theft	Admitted to Training Centre
13.7.2001	(1)  Theft (2)  Theft	(1)  4 months’ imprisonment and ordered to pay compensation (2)  4 months’ imprisonment, 2 months of which to run consecutively with (1)
30.8.2002	Theft	4 months’ imprisonment
28.3.2013	(1)  Burglary (2)  Failing to surrender to custody without reasonable cause as appointed	(1)  12 months’ imprisonment (2)  6 weeks’ imprisonment to run concurrently with (1)
8.4.2013	Breach of condition of stay	2 months’ imprisonment, to run concurrently with the 12 months’ imprisonment for burglary
28.5.2021	(1)  possession of a dangerous drug (2)  Possession of apparatus fit and intended for the inhalation of a dangerous drug	(1)  4 months’ imprisonment (2)  3 months’ imprisonment, to run concurrently with (1)
23.8.2021	Breach of condition of stay	36 days’ imprisonment

9.  During his stay in Hong Kong, the applicant has fathered two daughters, who are both Hong Kong permanent residents.  The applicant did not marry the mother, and the children were born out of wedlock. The daughters were born in June 2004 and May 2005 respectively.  They are turning 18 and 17 years old this year.  The daughters and the applicant are currently living together with the applicant’s widowed mother, who is also a Hong Kong permanent resident.

C.  The Deportation Order and Detention Order

10.  Section 20(1)(a)  of the Immigration Ordinance Cap 115 (“IO”)  provides that a deportation order could be issued against an immigrant if he or she was found guilty of an offence punishable with imprisonment for not less than 2 years.  For convenience, I shall refer to such offences as “deportable offences”.

11.  The offences of theft, burglary and breach of condition of stay committed in 2001, 2002 and 2013 are deportable offences: see sections 9 and 11 of the Theft Ordinance Cap 210 and section 41 of the IO.

12.  Therefore, the Director issued three deportation warning letters to the applicant on 12 November 2001, 28 September 2002 and 24 September 2013 respectively.

13.  After 2013, the applicant had been law abiding for 7 years, until he was convicted again for the two drug-related offences in 2021.  Those two offences are also deportable offences: see sections 8 and 36 of the Dangerous Drugs Ordinance Cap 134.

14.  The Director saw that as evidence of the applicant’s failure to rehabilitate himself.  On 18 June 2021, the Director served a “Notice of Consideration of Deportation” and a set of explanatory notes on the applicant.  The applicant objected to deportation on the basis that all his family members are in Hong Kong.

15.  Comments were invited from the applicant’s mother.  The mother submitted a written representation on 7 July 2021 and made a verbal representation during a phone interview with the Director on 3 August 2021.  The applicant’s mother objected to deportation.  She said: (1) all his family members in Hong Kong hoped that the applicant could stay; (2) the daughters were living in Hong Kong and needed the applicant’s paternal love; (3) the applicant was the sole breadwinner of the family; and (4) she suffered from leg and back pain and needed the applicant to take care of her since he was her only son.

16.  Having considered the comments from the applicant and his mother, the Director eventually decided to recommend the Permanent Secretary to issue a deportation order for life.  In the internal minute dated 7 October 2021 submitted for the Permanent Secretary’s approval, the Director was of the following views:

(1)  The two daughters were no longer of tender age and his family members are free to visit or reunite with him elsewhere outside Hong Kong if they wish to do so.

(2)  The applicant was given three deportation order warnings in the past but he did not take the chance to rehabilitate himself and reoffended in 2021.

(3)  The crimes he committed were serious in nature and it would not be in the public interest in Hong Kong to allow him to remain or come to Hong Kong again.

17.  The Permanent Secretary accepted the Director’s recommendation on 8 October 2021 and a deportation order for life was issued on the same day.

18.  After the deportation order was issued, the Principal Assistant Secretary for Security also authorized the detention of the applicant pending his removal from Hong Kong.

D.  Right of Abode Assessment

19.  Perhaps not directly relevant to the current application, and certainly not claimed by the applicant to be so, it might be wondered if the applicant had ever qualified for right of abode in Hong Kong given he has been living here for about 30 years.

20.  Before the Director recommended issuing the deportation order, he did make an assessment on whether the applicant was entitled to right of abode in Hong Kong.  It was assessed that he was not, because he did not meet the requirement of having ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before any of the dates he claimed/declared to have done so.

21.  Over the years, he made such declarations four times when he registered for his identity cards.  In his first declaration made on 8 November 1997, it had been less than 7 years from the time he entered Hong Kong in 1991.

22.  The remaining three declarations were made on 20 December 2001, 18 March 2003 and 5 June 2007.  He was sentence to imprisonment on 13 July 2001, 30 August 2002, 28 March 2013, and 8 April 2013.  His intermittent imprisonment had constituted a break on his ordinary residence for the relevant 7-year periods immediately before the three declaration dates.  Section 2(4)(b)  of the IO provides that any period of imprisonment or detention pursuant to the order of the Court shall not be treated as ordinary residence in Hong Kong.

23.  He was again sentenced to imprisonment on 28 May and 23 August 2021, which means even if he made an application now, he would still fail to meet the required 7-year period.

E.  Is There Any Merit in the Case?

E.1    The “October 2012” decision

24.  There was no decision against the applicant in “October 2012” to “revoke his visa” or “permit of stay”.  The Court, of course, would not grant leave for the applicant to challenge a non-existent decision.

25.  Even if the Court were to take a generous view and treat his complaint as referring to the Director’s rejection on 24 October 2014 or 29 June 2017 of his dependant visa extension applications, I still see no viable grounds.  The applicant did not put forward any grounds in the real sense.  He only said the decision was “unfair and unsafe” without any elaboration.  The fact was that his applications were cancelled because he failed to respond to the Director’s repeated demands for missing documents or information.  Besides, he would be out of time for 5 to 6 years and no reasons were provided to justify the delay.  I see no reasonably arguable grounds to justify the granting of leave, or to extend the time within which to bring any challenge.

E.2    The deportation order and the detention order

26.  The deportation order was issued lawfully under section 20(1)(a)  of the IO.

27.  The order is currently in force.  Under sections 54 and 55 of the IO, a person against whom a deportation order has been made could apply to the government to have the order suspended or rescinded.  No such application has been made by the applicant so far.

28.  Since there is a statutory mechanism to apply for suspension or rescission of the deportation order, it might be said that the applicant’s failure first to exhaust those alternatives before coming to Court is fatal to his leave application.

29.  But, in any event, the only thing which may resemble a ground/reason to suggest that the deportation order was wrongly issued is found in his supporting affidavit, where it says:

the decision dated 8 October 2021 is against the Bill of Rights to protect the rights of humans.  Because I am living in HK for 30 years and my whole family is living in HK.  I have children, my wife and my mother, who are all HK permanent residents.

30.  He did not identify any particular rights or sections in the BORO on which he sought to rely.  Nor do I see any potential rights applicable to him which could be said to have been breached.

31.  What he said about his decades of residence in Hong Kong and his family ties here are not matters which the Permanent Secretary is duty bound under the law to consider.  The same can be said of his mother’s submissions that she needed the applicant to take care of her and to provide parental love to the two daughters.

32.  It is well established in the immigration control context that, for matters which the decision maker is not duty bound to take into account, it is up to him to decide what factors to take into account and, if so, the appropriate weight to give: see BI v Director Immigration [2016] 2 HKLRD 520, at §47, endorsing §§61-66 of the judgment below.  Family matters and other humanitarian/compassionate grounds fall squarely in this category.

33.  In any event, as shown in the internal minute, the Director considered some of the matters raised by the applicant and his mother and disregarded some others.  It is impossible to criticise the Director’s thinking (which was endorsed by the Permanent Secretary)  for being irrational in the public law sense.

34.  For the sake of completeness, the applicant who has no right to remain in Hong Kong cannot rely on the family rights of his mother and daughters (who are Hong Kong permanent residents)  under the Basic Law or the Bill of Rights: see Comilang v Director of Immigration (2019)  22 HKCFAR 59, at §§71 and 90.

35.  For the detention order which was issued on the same date as the deportation order, it is unclear whether the applicant intended to challenge that order as well.  Assuming that he did, it could be disposed of quickly. The detention order was lawfully issued under section 32(3)  of the IO, which provides that that a person against whom a deportation order had been issued could be detained pending his removal.

36.  The Permanent Secretary also submitted that the decision to detain him was Hardial Singh compliant.  This should, of course, be assessed as of the date of the detention order.  The Permanent Secretary submitted that it was his intention to remove the applicant at the earliest moment and there was nothing to suggest that he could not be removed within a reasonable time.  The applicant provided no evidence to suggest otherwise.

37.  There was no procedural impropriety or unfairness, or unreasonableness in the public law sense.  I see no reasonable argument to suggest that the detention order was wrongly issued.

F.  Conclusion

38.  There is no reasonably arguable ground of judicial review with any prospect of success.

39.  The applicant’s application for leave to apply for judicial review is dismissed.

40.  Although the Director and Permanent Secretary seek an order for costs to follow that event, in the exercise of my discretion I make no order as to costs.