EGUIA CYNTHIA PERNITO v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

HCAL 2/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.2 OF 2004

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J U D G M E N T

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1. In this matter, the applicant, a Filipino national, seeks an order of certiorari to quash a decision of the Secretary for Security, acting under delegated authority, to order her deportation pursuant to section 20(1)(a) of the Immigration Ordinance, Cap.155, ('the Ordinance'). The applicant does so on the basis that the decision was 'Wednesbury' unreasonable in that, in coming to the decision, the Secretary for Security failed to take into account material issues or failed to give them due weight.

2. The background facts are these. The applicant was born in the Philippines and was married there, the marriage resulting in the birth of a son. In 1997, the applicant sought to come to Hong Kong to obtain employment as a domestic helper. She was able to obtain two contracts. Each of these contracts was for the standard period of two years.

3. In 2001, the applicant was informed by her then employer that, due to economic difficulties, her contract of employment would not be renewed. The applicant attempted to obtain another employment contract but was apparently unsuccessful in this endeavour.

4. At about this time; that is, when she was still lawfully employed, the applicant met and began an intimate relationship with a man by the name of Tarar. Mr Tarar is a permanent resident of Hong Kong and runs a business here.

5. Being unable to obtain new employment and reluctant to leave Hong Kong now that she was involved in a love affair with Mr Tarar, the applicant decided upon an illegal course of action. The applicant paid a sum of $18,000 to a third party to obtain a fraudulent agreement of employment and presented this agreement to the Immigration Department. On the basis that it was a genuine agreement, she was granted permission to remain in Hong Kong.

6. She did not then seek further work, or so the evidence indicates. Instead, she lived with Mr Tarar, relying on his support. However, in 2003, when the bogus contract came to an end, the applicant had to make new arrangements with the Immigration Department to remain in Hong Kong and it was at this time that her illegal conduct became known.

7. The applicant was charged with offences of making misrepresentations to the immigration authorities pursuant to s.42 of the Ordinance. An offence under s.42 renders a person liable to imprisonment for two years. The applicant was sentenced to five months imprisonment.

8. While serving her term, the applicant was advised that consideration was being given to her deportation. She was given an opportunity to make representations as to why she should not be deported. She did so both personally and by employing a firm of solicitors to make representations on her behalf. In one letter from the applicant's solicitors dated 17 October 2003 the following is said :

"In the circumstances, we would urge that your Department would not consider deporting our client since by deporting her she may never have the chance of coming back to Hong Kong which, we submit, will be an extreme punishment after regarding the circumstances of the case.

Please also consider that our client's boyfriend/financier, Mr Tarar, would be entitled to apply for a permanent Hong Kong ID soon and they may have plan to share their future here."

[my emphasis]

9. It is to be noted that one of the other reasons put forward by the applicant to remain in Hong Kong was her apparent desire to go into business here, the nature of the business being unspecified.

10. Despite these representations, the decision was made to deport the applicant. The order was made pursuant to s.20(1)(a) of the Ordinance, being founded on the fact (not in any way disputed) that the applicant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years. Pursuant to s.20(5), the deportation order prohibited the applicant from returning to Hong Kong at any time after her removal. An order of that nature is commonly called a deportation order 'for life'. S.20(1) and (5) of the Ordinance read :

"	(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
		(b)	the Governor deems it to be conducive to the public good.
	...
	(5) A deportation order shall require the person against whom it is made to leave Hong Kong and shall prohibit him from being in Hong Kong at any time thereafter or during such period as may be specified in the order."

11. When that order was served, the applicant sought to have it rescinded. However, by letter dated 30 December 2003, the Secretary for Security advised the applicant that, having taken into account all the circumstances of the case, he was not able to find sufficient justification for agreeing to that course of action. The deportation order stood and the applicant instituted the present proceedings.

12. At the time when I granted leave to proceed with this application, I had no evidence before me as to how it was that the decision-maker in this matter came to the decision to deport the applicant. However, I now have the affirmation of Mr Stanley Ying, the Permanent Secretary for Security, his affirmation having been made on 24 March 2004.

13. Mr Ying said that in November 2003 the Director of Immigration submitted an application for deportation to him in respect of the applicant. In that application, said Mr Ying, he was presented with the history of the matter and how it was that the applicant had come to be serving a term of imprisonment in Hong Kong. He was informed that the applicant had a husband still in the Philippines, although divorce proceedings were under way, and, in addition, had a son, parents and seven brothers and sisters in that country. Mr Ying went on to say :

"The Director advised me that the applicant's boyfriend, a Mr Tarar, had been interviewed on 30 October 2003 and that he had told the Director that he had applied for a divorce from his wife in Pakistan and the application was being processed.

I was advised that he had two sons in Hong Kong and that he operated an auto dismantling company here. He claimed to be capable financially of supporting the applicant. I was advised that Mr Tarar had told the Director that he would marry the applicant in the future and that he hoped she would be allowed to stay with him in Hong Kong."

14. Mr Ying went on to explain how it was that he came to his decision :

"The applicant had been permitted to stay in Hong Kong for employment. She was aware that she was not qualified for stay and should leave Hong Kong within two weeks after termination of her employment contract.

Her offences were premeditated and devised to undermine Immigration Control as she used the false documents to apply for extensions of stay to conceal her unemployment status since 2002."

15. During the course of her submissions, Ms Gwilt, who appeared for the applicant, took exception to the description of the applicant's offences as being 'premeditated'. She did so, as I understand it, on the basis that the word somehow connotes cold-blooded, calculated, sly conduct. I see no merit in that criticism. The applicant's offences were clearly premeditated as that term is understood in law. They were not offences which arose on the spur of the moment. I do not read Mr Ying's words to suggest the level of moral depravity suggested by Ms Gwilt.

16. The affirmation of Mr Ying continued :

"The applicant claimed that she committed the offences for fear of going back to the Philippines as she had developed a steady relationship with Mr Tarar.

I noted that, other than the present convictions, i.e. the basis of the deportation order, the applicant had never committed any offences in Hong Kong nor had any adverse records here.

She might simply leave Hong Kong within her limit of stay and then apply for an appropriate visa to enter Hong Kong again. However, the applicant decided to undermine Immigration control and committed the offences."

17. Mr Ying said that in making his decision, he took into account that the applicant had strong family ties in the Philippines. She was not being removed to a country where she would be bereft of support. As to the important relationship between Mr Tarar and the applicant, Mr Ying said :

"The matrimonial relationship between the applicant and Mr Tarar has not yet been established. The applicant has no family members nor close relatives in Hong Kong.

I did consider the applicant's plan to marry Mr Tarar in the future. I noted that the deportation of the applicant would not itself affect their intended marriage though they could not marry in Hong Kong."

18. Mr Ying went on to say:

"In making the decision to deport the applicant, I weighed hardship to the applicant and Mr Tarar as well as considered the public interest. I was sensitive to the fact that the applicant could not marry Mr Tarar in Hong Kong. However, this factor did not outweigh my concerns for the public interest of Hong Kong."

19. Having looked to the reasons for the decision, I now look to the challenges made to the lawfulness of those reasons. By way of an overview, Ms Gwilt said that the decision-maker had failed to take into account that the applicant had committed her offences for the sole reason of wishing to remain in Hong Kong with Mr Tarar. Little or no consideration was given to the fact that she had not remained to exploit the market here (working unlawfully) or for immoral purposes (prostitution).

20. There could be no suggestion, said Ms Gwilt, that the applicant remained a threat to Hong Kong. That, however, is not as clear cut as Ms Gwilt made it appear. If the applicant wished to go into business, as she said, a record of presenting a fraudulent agreement would be relevant to possible future conduct.

21. While it was recognised that the applicant's deportation would place a burden on the relationship between the applicant and Mr Tarar, said Ms Gwilt, no explanation was given as to how, despite these matters, it remained in the public interest to order the applicant's removal.

22. Ms Gwilt was blunt in her assertion that the decision bore the characteristics of a blinkered bureaucratic decision in which the decision-maker has simply 'ticked the appropriate boxes' and has failed, in any real sense, to exercise discretion. It appears, she said, that the commission of the offences themselves was the single true basis upon which the decision-maker came to his decision and that was simply not enough.

23. In a judgment given by myself and handed down on 15 May 2001 - Weerachon Sae-Ieo v. Secretary for Security (unreported) HCAL 110/2002 - I looked to the powers under the Ordinance to deport persons 'for life'. I said the following in paragraph 59 :

"It is clear from a reading of section 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 2 years."

I continued :

"In Hong Kong the Legislature, having defined criminal conduct of sufficient seriousness to merit deportation, the exercise of discretion pursuant to section 20(1)(a) is triggered by a conviction for any such conduct."

As to the circumstances in which the discretion is to be exercised, I said the following in paragraph 60 :

"In my judgment the exercise of executive discretion pursuant to section 20(1)(a) must be governed by the requirements of public policy. Considered in that broad perspective, the question may be asked, 'Do Hong Kong's best interests justify an order for deportation?' or, to express it another way, 'Are there grounds in the public good to justify such an order?' "

I then went on, in paragraph 61, to cite with approval the dictum of Stock J, as he then was, in Bahadur v. Secretary for Security (unreported) HCAL 18/1999 :

"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 practiced 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?' "

24. In my view, Stock J's dictum, while not fully on all fours factually with the applicant's case, is in substance applicable.

25. I continued in my judgment, in paragraph 62 :

"Compassionate circumstances relevant to the potential deportee must, of course, be taken into account. The requirements of public policy demand no less. But the point at issue is that the exercise of executive discretion pursuant to section 20(1)(a) is not restricted on the one side of the scale to considering the threat to law and order posed by a potential deportee."

26. As to the issue of deportation 'for life' as opposed to deportation for a limited period, Ms Gwilt said that in all the circumstances this was entirely harsh and disproportionate. If there was to be a deportation order it should be for a limited period of time only. The same issue was raised before me in my judgment to which I have been referring and again I looked to the dictum of Stock J in the Bahadur case, in which, in respect of essentially the same submission as put forward by Ms Gwilt, the judge said :

"It is said that the decision could have been made to deport the applicant for but a few months and that a life 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 the 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 a visitor leave only for so long as the 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 welcomed 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 its 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."

27. On appeal, Stock J's dictum was approved, Keith JA saying :

"What the judge was saying was that deportation is not a temporary measure. It 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 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."

Keith JA went on to say that the Court of Appeal agreed with those principles.

28. Accordingly, the law as it presently stands is that, absent what Stock J has described as 'the most exceptional circumstances', the applicant cannot be heard to say that she should be deported for a limited period only. For the reasons given later in this judgment, I fail to see how it can be said that the most exceptional mitigating or compassionate circumstances exist in the present case.

29. What must also be remembered is that an order for deportation prohibiting the deported person from returning to Hong Kong 'at any time thereafter' is not, in fact, a permanent expulsion that allows for no later reconsideration. As Mr Marshall SC, counsel for the respondents, pointed out, administrative mechanisms do exist in terms of which a person deported 'for life' may seek to return to Hong Kong. Mr Marshall was able to refer to two cases in which successful applications to return had been made. In one of those cases the applicant had been sentenced to 15 months imprisonment for robbery, that being the reason for his deportation. If the applicant was at any future time to apply to return to Hong Kong, said Mr Marshall, her application would be considered on its merits. That being the case, the gates had not been irrevocably closed against her.

30. Ms Gwilt, in the course of her submissions, attempted to play down the seriousness of the applicant's offences. She said that the deportation order had sprung from a failure to view the applicant's 'foolish' conduct in the proper light, giving due weight to the mitigating circumstances that motivated the commission of the offences. But, of course, the responsibility of weighing matters, including such matters as the seriousness of criminal conduct, rests with the decision-maker. It is not, on the merits, a function to be usurped by this Court. The court will review the decision and, in so far as fundamental rights may be involved, will ensure that anxious scrutiny is employed. But no allegations of a breach of fundamental rights have been made and, while I have taken account of all the matters urged upon me by Ms Gwilt, I fail to see how it can be said that the decision-maker in the present case irrationally emphasised the seriousness of the applicant's crimes while neglecting to consider the mitigating factors; that is, the motive for their commission. In his affirmation, the decision-maker, Mr Ying, specifically recognised the applicant's assertion that she had committed her offences because she had 'developed a steady relationship with Mr Tarar'.

31. What is not disputed is that the applicant knowingly obtained an entirely bogus document of employment with the specific purpose of deceiving the immigration authorities. Hong Kong manages restrictive, not generous, immigration policies. Hong Kong, it has long been recognised, is a small crowded territory. Our courts have recognised that it is legitimate for the Executive (which includes the two respondents) to hold that if immigration policies are undermined, the threat to our already stretched resources increases.

32. While I may have come to a different conclusion to the decision-maker, as I have emphasised to Ms Gwilt during the course of some fairly lively exchanges, it is not for this court to decide whether the decision was right or wrong. The merits of the decision rest with the person to whom the Legislature and the Executive have given the decision-making responsibilities. This court can only decide whether in public law terms the decision was unlawful.

33. As for the overriding issue, as the applicant sees it, of the love affair between herself and Mr Tarar, it was again for the decision-maker, in light of the known facts at the time, to determine what weight to give to this in the exercise of his discretion. The decision-maker was clearly of the view that the affair, whatever the protestations of the applicant and Mr Tarar, did not at that time promise a certain future. Both parties were married, divorce proceedings, if underway, had not been finalised. Was it irrational; that is, outside of the decision-maker's broad ambit of discretion, to work on the basis that the couple's future was uncertain? I think not.

34. In all the circumstances, I am not in a position to come to a finding that the decision was in any way unreasonable, as that word is understood in administrative law. Whatever personal sympathy I may have for the applicant, my jurisdiction is restricted to a review of the lawfulness of the Executive's process and, as I have emphasised, I may not trespass into the area of the merits. The application must therefore be dismissed.

35. Mr Marshall has sought costs. In terms of Order 62, rule 9 of the Rules of the High Court, he has put before me certain figures and sought a summary assessment based on those costs. The figures come to $128,724. I have considered them. In my judgment, however, an equitable figure would be $100,000. Mr Marshall accepts that figure as appropriate.

36. Ms Gwilt has not had an opportunity to be appraised of the details of these figures. In the circumstances, I intend to make an order nisi that costs be in that sum. If an application is not made within seven days then the order will become final. If, however, within seven days, the applicant seeks taxation of the costs, then the matter will proceed to taxation in the ordinary way.