SHARIFUL ISLAM v. SECRETARY FOR SECURITY

HCAL 1590/2020

[2020] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1590 OF 2020

________________________

________________________

________________________

D E C I S I O N

________________________

INTRODUCTION

1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge a deportation order (“the Deportation Order”) made by the Permanent Secretary for Security against him dated 14 April 2020.

BASIC FACTS

(i)   Personal background and non-refoulement claim

2.  The Applicant is a Bangladeshi national.  He was born in Bangladesh on 30 October 1982.

3.  On 21 March 2009, the Applicant was arrested for being a suspected illegal immigrant in Hong Kong.  He claimed that he had sneaked into Hong Kong illegally by boat on the same date.

4.  On 31 March 2007, while under detention, the Applicant made a torture claim.

5.  On 31 May 2007, a removal order was made against the Applicant.  On 13 June 2007, the Applicant’s appeal against the removal order was dismissed.

6.  On 25 July 2013, the Applicant’s torture claim was rejected by the Director of Immigration (“the Director”).  On 19 May 2014, the Applicant’s appeal against the Director’s rejection of the torture claim was dismissed by the Torture Claims Appeal Board.

7.  Upon the implementation of the Unified Screening Mechanism on 3 March 2014, the Applicant’s torture claim was treated as a non-refoulement claim on all applicable grounds, and his claim was screened for grounds other than the risk of torture.  On 27 July 2018, the non-refoulement claim (on all applicable grounds) was refused by the Director.

8.  On 8 August 2018, the Applicant petitioned to the Non-refoulement Claims Petition Office (“the NCPO”) against the refusal of the non-refoulement claim.  On 8 July 2019, the NCPO allowed the Applicant’s request to withdraw the petition, and treated the petition as finally determined.

(ii)  The Deportation Order

9.  On 14 June 2010, the Applicant was convicted of the offence of “taking employment while being a person in respect of whom a removal order is in force”, contrary to s 38AA(1)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  He was sentenced to 2 months’ imprisonment.

10.  On 1 June 2011, the Applicant was again convicted of the offence of “taking employment while being a person in respect of whom a removal order is in force”, contrary to s 38AA(1)(b) of the Ordinance.  He was sentenced to 8 months’ imprisonment.

11.  On 10 July 2014, the Applicant was convicted of 2 offences, namely:

(1)  “possession for sale or for any purpose of trade or manufacture goods to which a forged trade mark was applied”, contrary to s 9(2) as read with s 18(1) of the Trade Descriptions Ordinance, Cap 362; and

(2)  “establishing or joining in any business or taking employment while being a person in respect of whom a removal order is in force”, contrary to s 38AA(1)(b) of the Ordinance.

On 8 December 2014, the Applicant was sentenced to 7 weeks’ imprisonment for the offence under (1), and 12 months’ imprisonment for the offence under (2).  On 7 January 2015, the latter sentence was reduced to 12 months less 182 days upon review.

12.  On 9 March 2020, the Applicant was invited to make representation, if any, on his intended deportation under s 20(1)(a) of the Ordinance by reason of his convictions for the offences referred to in paragraphs 10 and 11 above, each of which was punishable with imprisonment for not less than two years.  In the Grounds against Deportation of the same date, the Applicant stated that he had no objection against deportation and he wished to return to his home country.

13.  On 14 April 2020, the Permanent Secretary for Secretary, acting under the delegated authority of the Chief Executive, made the Deportation Order against the Applicant on the ground that he was not a Hong Kong permanent resident and had been found guilty of an offence punishable with imprisonment for not less than 2 years, pursuant to s 20(1)(a) of the Ordinance.

14.  On 4 June 2020, the Deportation Order was served on the Applicant.  On the same date, he submitted a written representation stating that he wanted to go back to Bangladesh as soon as possible.

15.  On 30 July 2020, the Applicant made the present application for leave to apply for judicial review of the Deportation Order. On the same date, he wrote to the Director stating that he did not want to go back to Bangladesh because he was “afraid of COVID-19.  I will go back after the virus finish”.

DISCUSSION

16.  The Applicant has not stated any ground on which relief is sought in his Form 86.  In his Affirmation filed in support of the application for leave to apply for judicial review dated 30 July 2020, the Applicant merely states that following:

“Affirmation for leave to apply for judicial review against the order of Secretary for Security as I do not agree with him. Attached mark ‘A’ and ‘B’”.

17.  The document marked “A” is a copy of the Deportation Order, and the document marked “B” is a copy of a “Notice of Detention”.

18.  A mere statement by the Applicant that he does not agree with the Deportation Order made by the Permanent Secretary is plainly not a valid, or sufficient, ground of judicial review of the order.  There is nothing in the materials before the court to indicate that the Deportation Order made by the Permanent Secretary was unlawful or irrational, or made in a procedurally unfair manner.  The outbreak of COVID-19 globally is also not a proper ground to challenge the Deportation Order.

19.  The intended application for judicial review is not reasonable arguable, and has no realistic prospect of success.

DISPOSITION

20.  The application for leave to apply for judicial review is dismissed, with no order as to costs.