JAMES STEVEN POLLARD v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

HCAL 92/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 92 OF 2010

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J U D G M E N T

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Facts

1.  In this application for judicial review, the applicant challenges the deportation order dated 27 August 2010 made by the Permanent Secretary for Security requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter, and the Permanent Secretary’s subsequent decision set out in a letter dated 31 August 2010 refusing to revise the decision to deport him for life.  Originally, the applicant also challenged the decision of the Director of Immigration stated in a letter dated 7 September 2010 refusing to release him on recognizance. The matter has subsequently been resolved and it no longer is a subject matter of challenge.

2.  The applicant was born in 1979 and is an Australian national.  From 2002 to 2005, he worked as a bar manager and training consultant in Australia.  In 2005 when he was 26 years old, the applicant applied to work in Hong Kong.  He was granted an employment visas to work for the period November 2005 to November 2006.  He got a second employment visa to work for the period April 2007 to April 2008.

3.  The first employment visa was a working holiday visa, by which he was entitled to take up short term employment in Hong Kong provided that he did not work for the same employer for more than 3 months.  In his application for the visa, the applicant stated that his main purpose of coming to Hong Kong was “to holiday”.

4.  As for his second employment visa, the applicant’s employment was terminated on 5 August 2007 for (alleged) reasons of frequent absence from work, fake sick leave certificate and theft at the workplace – there are no materials in the evidence filed, apart from the former employer’s assertions, to substantiate these charges.

5.  In any event, for all other periods the applicant spent in Hong Kong (and there were periods when he was away from Hong Kong), he was permitted to remain as a visitor with a limit of stay of 90 days only on each occasion.  Employment was expressly prohibited.

6.  The applicant last entered Hong Kong on 14 April 2010 and was permitted to remain as a visitor until 13 July 2010.  His limit of stay has expired since 14 July 2010.

7.  On 26 February 2010, the applicant pleaded guilty to and was convicted of 2 charges of obtaining services by deception, contrary to section 18A(1) of the Theft Ordinance (Cap 210).  The applicant had used a credit card reported missing by another person to settle room fees in the sums of $2,204.50 and $590 in 2 hotels on 23 September 2008 and 30 September 2008 respectively.  There is no dispute that the credit card had come to the applicant’s possession by mistake, but equally not disputed is the fact that the applicant consciously and dishonestly made use of the credit card which he had discovered did not belong to him to settle the hotel bills.  On 23 March 2010, the applicant was sentenced to 6 months’ imprisonment on each of the 2 charges to run concurrently, and to compensate the victim bank of the sums involved.  The applicant’s appeal against conviction was dismissed by the High Court.

8.  In view of the convictions, the Director of Immigration made a recommendation on 4 August 2010 to the Permanent Secretary that a deportation order for life be made against the applicant on the ground that his continued presence in Hong Kong was considered undesirable.  Before coming to that recommendation, the Director had invited and received from the applicant representations and other materials in opposition to the proposed deportation. All this, together with the Director’s recommendation, were submitted to the Permanent Secretary for consideration.  Materials received after the making of the recommendation were also forwarded to the Permanent Secretary for her consideration.

9.  The materials received by the Permanent Secretary were digested in an internal minutes simply known as “M2”.  M2 summarised the representations made on behalf of the applicant by his lawyers as follows (para 5):

“(a) Mr Pollard was of previous good character. He had very good family background and he felt extremely remorseful for his act of stupidity. Mr Pollard’s conduct should be viewed as an extremely unfortunate aberration and an act of uncharacteristic stupidity but not representative of his true character. He would pose no threat of re-offending;

(b) the sum of money involved in the case was very small. Mr Pollard had given instruction to his legal representative to repay the credit card issuer (a sum of HKD2,794.5 had been made to the credit card issuer on 14 July 2010 [Appendix VI to (5)]). He also participated in charity work to repay the Hong Kong society;

(c) the credit card in question came into Mr Pollard’s possession by mistake. When Mr Pollard used the credit card in question he also handed over his own passport. There was no suggestion that Mr Pollard’s conduct was the result of a sophisticated credit card scam or fraud. The degree of criminality associated with the offence was extremely low;

(d) the final sentence of the decision made by the Judge on Mr Pollard’s appeal against sentence made it clear that the Judge had sympathy for Mr Pollard;

(e) Mr Pollard was in a stable relationship with Ms Kiely who held an employment visa and worked as a teacher in Hong Kong. He treated Ms Kiely as his de-facto partner and genuinely wished to establish a future with her in Hong Kong. The father of Ms Kiely was a permanent resident in Hong Kong; and

(f) Mr Pollard was recognized as a specialist in “mixology” and two working visas in Hong Kong had been given to him in recognition of his special skills. He had signed an employment contract with a bar in Hong Kong and could take up a position of employment should he be permitted to remain in Hong Kong. He would be able to establish a productive future with his de-facto partner and contribute productively to the local food and beverage industry.”

10.  M2 (para 7) also referred to a letter written personally by the applicant to the Director opposing deportation on various grounds, namely:

“(a) he had built a successful career in the restaurant industry in Hong Kong. He had trained and employed countless young and up-coming professionals and had devoted to improve the level of professionalism of restaurants in Hong Kong;

(b) his career in Hong Kong would come to an abrupt stop if he was deported. He would lose opportunities to work in China, Macau and other nearby territories if he could not fly via Hong Kong. He would be unemployed and suffer serious financial problem if he could not find a job in Australia;

(c) he had actively involved in charity and had devoted his time to several Hong Kong based charity organizations which focus on children’s education and living standard;

(d) if he was deported, he would not be able to visit his de-facto wife’s family (ten members) in Hong Kong and she had to leave her job as well as her entire family. That would be disastrous for both of them; and

(e) the Magistrate considered he had committed a fault of very small scale and he was sentenced to serve a four months’ custodial sentence. He accepted the sentence because he found it imperative to restore himself a moral citizen in Hong Kong; and

(f)     he had spent an unreasonable sum of money (over HKD 500,000) to defend himself with a view to showing that he treated the charge very seriously and he wanted to stay in Hong Kong desperately.”

11.  M2 further mentioned that by letters dated 15 March 2010 and 28 July 2010, the applicant’s girlfriend (or fiancée), Miss Kiely, had made representations against the intended deportation of the applicant.  It is the applicant’s case that he met his girlfriend in 2006.  Miss Kiely is Irish but his father is a permanent resident of Hong Kong.  She works as a school teacher in Hong Kong on an employment visa.  It is said that the applicant and Miss Kiely have been in a relationship for around 3 years and wish to start a family in Hong Kong.

12.  M2 noted, however, that Miss Kiely was first granted resident status in Hong Kong in 2001 but was absent from Hong Kong between June 2001 and September 2004.  She visited Hong Kong occasionally in 2004 to 2006.  Afterwards, she remained in Hong Kong on visitor status except from 2007 to 2008 when she was granted resident status on employment.  Her recent application for an entry visa to Hong Kong for employment was approved on 19 July 2010 (M2 was dated 27 August 2010).

13.  M2 also referred to letters dated 26 July 2010 and 27 July 2010 written by the applicant’s father and Miss Kiely’s sibling respectively in support of the applicant’s opposition to the intended deportation.  These letters, like Miss Kiely’s letters, were all annexed to M2 for the Permanent Secretary’s consideration.

14.  M2 went on to recommend the applicant’s deportation for life:

“14. Having carefully considered all the circumstances of the case and the representations against deportation put forth by Mr Pollard, his legal representatives (including all supporting documents and all character statements from Mr Pollard’s friends and business associates), his father, his girlfriend, his girlfriend’s brother, as well as the Director of Immigration’s comments, I recommend that Mr Pollard should be deported for life on the following grounds –

(a) Mr Pollard has been convicted of two counts of "Obtaining services by deception" committed on 23 September and 30 September 2008 respectively and was sentenced to a total of six months’ imprisonment. His appeal against sentence was dismissed by the Court of First Instance on 2 June 2010. The length of sentence imposed by the court had reflected that the offences committed by Mr Pollard were serious in nature;

(b) Mr Pollard has no close family connection in Hong Kong. His claimed "de-facto" wife, Ms Aisling Kiely, is not a Hong Kong permanent resident but only on employment visa in Hong Kong;

(c) the representations put forth regarding the relationship between Mr Pollard and his girlfriend (Ms Aisling Kiely), and also the connections of Ms Kiely to Hong Kong have been fully considered. According to available information, Ms Kiely has spent a relatively long period of time in other countries in the past years. Ms Kiely is free to visit Mr Pollard in Australia. Taking into account their background and immigration records/status in Hong Kong, it is considered that while the deportation of Mr Pollard may deprive him of his proximity to his girlfriend in Hong Kong, it would not deprive them of their freedom to stay together in other places if they wish;

(d) Mr Pollard was first approved resident status by employment in Hong Kong in November 2005 only. But he did not apply for extension of stay on resident status upon its expiry in November 2006. Rather he remained in Hong Kong as a visitor from December 2006 to April 2007. He was granted fresh entry for employment between April 2007 and April 2008. Between 2008 and 2010, he has only stayed in Hong Kong as a visitor. Mr Pollard’s parents and siblings are living in Australia. Being an able-bodied adult at the age of 31 with expertise in his profession, he should be able to earn a living in his home country. There should be no undue hardship for him to establish his life in Australia after his deportation; and

(e)     it is considered that there are no other special factors that may justify why a deportation order should not be issued in view of the serious offences committed by Mr Pollard.  Having balanced the gravity of the offences and all the representations against deportation, it is considered that there is no sufficiently justified extenuating ground warranting exceptional consideration. I recommended that Mr Pollard should be deported from Hong Kong for life.”

15.  All relevant documents were annexed to M2 for the Permanent Secretary’s consideration.  Quite plainly, the Permanent Secretary agreed with the views of the author of M2 and, as mentioned, she made the deportation order for life on 27 August 2010.  In the evidence filed on behalf of the Permanent Secretary in these proceedings, it was stated that the Permanent Secretary decided to issue the deportation order for life after considering all the relevant circumstances, including all the representations made by or on behalf of the applicant.  The reasons of the Permanent Secretary for her decision, set out in the evidence filed, were the same as those given for the recommendation made in M2.

16.  The deportation order was issued without any accompanying reasons to the applicant.  Through his lawyers, the applicant asked the Permanent Secretary to review her decision to deport the applicant for life.  In their letter dated 27 August 2010, the applicant’s lawyers stated that the applicant would accept deportation “for a limited period of time, say, not exceeding 3 years”.

17.  The Permanent Secretary refused to alter her decision.  She considered that the applicant had not submitted any new grounds for his objection to deportation for life and the material circumstances had remained unchanged.  In the letter of refusal dated 31 August 2010, it was stated that the Permanent Secretary had carefully considered all circumstances relevant to the applicant including the written representations and letters already described as well as other materials submitted on the applicant’s behalf, and the fact that the applicant was convicted of the offences in question.  The letter also stated that given the seriousness of the convictions involved, the Permanent Secretary considered it appropriate to deport the applicant for life.

Grounds of challenge

18.  Mr SH Kwok, appearing for the applicant, essentially relies on 4 grounds to challenge the 2 decisions in question.  First, he argues that the question of deportation involves a two-stage exercise – (i) whether to exercise the power to deport; and (ii) what the period of exclusion from Hong Kong should be (ie for life or for a definite period of time).  He submits that there is no evidence to show that the Permanent Secretary has gone through the two-stage exercise in her decision-making process.  The Secretary merely endorsed the suggestion made in M2, which recommended a deportation order for life after a “one-stop exercise”.

19.  Secondly, Mr Kwok argues that the Permanent Secretary has failed to consider all relevant considerations in arriving at her decision.

20.  Thirdly, Mr Kwok argues that the Secretary has failed to give any or any adequate and intelligible reasons for her decisions.

21.  Fourthly, Mr Kwok contends that the decision to make the deportation order for life was irrational and no reasonable decision-maker would have deported the applicant for life.

22.  Mr Kwok recognises that his second ground is, strictly speaking, not specifically covered by the Form 86 and asks for leave to amend accordingly.  Ms Grace Chow, appearing for the Permanent Secretary (and the Director of Immigration), opposes the application to amend on the ground that the new point has no merit.  She does not suggest that her case would otherwise be prejudiced by the late amendment.  As merit is the main point of objection, I would deal with the substantive argument first, before deciding whether to give leave to amend.

Ground (1): a two-stage exercise

23.  The power to deport is provided by section 20 of the Immigration Ordinance (Cap 115):

“ (1) The [Chief Executive] 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 [Chief Executive] deems it to be conducive to the public good.

(2)-(4) (Repealed 88 of 1997 s. 10)

(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.

(6) (Repealed 31 of 1987 s. 17)

(7) A deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.

(8)   For the purposes of this section, the question whether an offence is one for which a person is punishable with imprisonment shall be determined without regard to any Ordinance restricting the imprisonment of young offenders.”

24.  Mr Kwok traces the legislative history of section 20 to the Deportation (British Subjects) Ordinance (Cap 239) and the Deportation of Aliens Ordinance (Cap 240), both of which were repealed by the Immigration Ordinance when it was enacted in 1971.  The latter Ordinance was enacted to consolidate and amend the law relating to “immigration and deportation”.  Mr Kwok argues that under Cap 239, section 3 provided the power to make deportation orders, whereas section 8 and Form 2 of that Ordinance set out the form of the order.  The statutory form provided that the deportee shall remain out of Hong Kong either for a finite period of years or for an unlimited period.

25.  Similar provisions were found in section 3 of Cap 240 and Form 7 thereof.

26.  Mr Kwok argues that these relevant provisions show that the decision-making process involves the two-stage exercise described above.  He also argues that that approach has been evidenced by the evidence filed by the then Secretary for Security with the court in Weerachon Sae Ieo v Secretary for Security [2003] 2 HKLRD 519, paras 39 to 41.

27.  In my view, where, as here, the deportation order is made pursuant to section 20(1)(a) of the Immigration Ordinance, that is, the potential deportee has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years, there are involved in the decision-making process at least 3 questions to be asked and answered:

(1) Whether the potential deportee has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years – this is a question of fact which admits of a “yes” or “no” answer only;

(2) If the answer is “yes”, whether after considering all relevant circumstances, the potential deportee should be deported from Hong Kong;

(3) If the answer is again “yes”, what the period of exclusion should be – that is, whether it should be for life or for a definite period of time, a matter which section 20(5) requires the deportation order to specify.

28.  Question (1) is not in issue in the present case as the statutory offence involved is punishable with imprisonment for 10 years.

29.  That leaves questions (2) and (3).  To this extent, therefore, I am in agreement with Mr Kwok that when she considered whether to make a deportation order against the applicant, the Permanent Secretary had to ask and answer 2 questions, that is, questions (2) and (3) identified above.

30.  However, it does not follow from this that the Permanent Secretary must go through the “two-stage exercise” argued by Mr Kwok.  The fact that the Permanent Secretary has 2 questions to ask and answer does not mean that she has to do so at two stages.

31.  First, I do not think section 20 of the Immigration Ordinance, or for that matter, any of the earlier provisions in the repealed Ordinances, requires or required, as a matter of interpretation, such an approach.  Secondly, as a matter of decision-making process, given the nature of the decision to be made and of the 2 questions to be asked and answered, there is simply no legal, logical or practical necessity to ask and answer the 2 questions in two stages, instead of in one-go.  It is really a matter for the Permanent Secretary.

32.  In the present case, it is plain from the evidence and materials filed, and indeed from the deportation order made itself, that the Permanent Secretary has dealt with both questions, that is, she has come to the conclusion that the applicant should be deported, and he should be deported for life.  That this is expressed in one sentence instead of two is neither here nor there.

33.  Of course, the Court appreciates that Mr Kwok’s point goes further than mere form.  In substance, Mr Kwok is complaining that on the materials filed, there is no or insufficient indication that the Permanent Secretary or the author of M2 has ever considered the distinct question of whether the applicant should only be deported for a finite period of time or whether he really should be deported for life.

34.  Even understood in this light, Mr Kwok’s argument must still be rejected.  First, the bottom line is that the applicant did through his solicitors suggest that he be deported for not more than 3 years, and that formed the main basis of his request for reconsideration of the deportation order for life.  That request was rejected by the Permanent Secretary, and in coming to that conclusion, the Permanent Secretary must have had considered and rejected the suggestion of deporting the applicant for a finite period of time only.

35.  Secondly and more importantly, the nature of a deportation order must be appreciated.  As was explained by Stock J (as the Vice-President then was) in Bahadur v Secretary for Security (1998-99) 8 HKPLR 77, 95E to H:

“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.”

36.  On appeal, the Court of Appeal expressly agreed with Stock J’s observations: [2000] 2 HKLRD 113, 127J to 128D/E.

37.  In Weerachon, a case relied on by Mr Kwok himself, Hartmann J (as he then was) expressed his agreement with the views of Stock J and the Court of Appeal in Bahadur.  HisLordship pointed out that deportation does not constitute punishment for an offence.  See paras 68 to 69.

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.

39.  Given that essential nature or character of a deportation order, it is difficult to see how the approach of the Permanent Secretary can be faulted.  Nor can it be realistically suggested that in focusing her attention on whether a deportation order for life should be made (and that quite plainly was the focus of M2 as well), she had overlooked the possibility of deporting the applicant for only a limited period of time.  As a matter of fact, M2 did specifically mention that there was “no sufficiently justified extenuating ground warranting exceptional consideration” (para 14(e)).

40.  In any event, as already mentioned, even if the Permanent Secretary had forgotten that possibility in her initial decision, she could not possibly have failed to bear that possibility in mind when she was specifically asked by the applicant’s lawyers to consider deporting the applicant for a period of not more than 3 years.  After all, it must be remembered that the Permanent Secretary and her subordinates deal with deportation decisions on a regular basis, and there is simply no reason to suggest that they have, somehow, in the present case, forgotten the possibility of deporting the applicant for a limited period of time only.

Ground (2): failing to consider all relevant considerations

41.  As to Mr Kwok’s second point, counsel submits that M2 completely failed to deal with various matters, that is, that the offences were committed as an act of stupidity; that the applicant was remorseful; that there was no likelihood of re-offending in the future; the applicant’s good background; and his contribution to the beverage business in Hong Kong and charity.  Counsel also submits that hardships that the applicant would experience if deported in relation to re-establishing himself and his family in Australia were dealt with inadequately.

42.  I have no hesitation in rejecting the submission.  As Ms Chow has rightly pointed out, the matters complained of were specifically dealt with in paragraphs 5(a), 7(a) and (c) and 14 of M2.

43.  It is true that in the letter of refusal, the Permanent Secretary only mentioned “the seriousness of the offence” as a specific reason for her decision.  However, it is plain from M2 and the evidence filed that the two decisions were made by the Permanent Secretary after balancing the gravity of the offences and all the representations made by or on behalf of the applicant against deportation.

44.  Mr Kwok submits that to justify a deportation order for life in the absence of “the most serious of offences”, it has to be for the reason that the person should not be welcome back to Hong Kong.  The short answer is that the Legislature has decided that the commission of an offence punishable with imprisonment for not less than 2 years is by itself “serious” enough for the Permanent Secretary to consider exercising the power to deport for life (Weerachon, supra, para 59).  There is therefore simply no basis to contend that unless the case involves the most serious of offences it is necessary for the Secretary to further show that the person should not be welcome back to Hong Kong.

45.  As to the hardships and compassionate circumstances relied on by the applicant, they have been taken into account in M2 and by the Permanent Secretary.  What weight should be given to those circumstances was a matter of discretion for the Permanent Secretary, not the Court.

46.  In particular, in relation to the applicant’s relationship with his girlfriend, that was specifically dealt with in M2. Amongst other things, M2 noted both the applicant’s and his girlfriend’s background and immigration records/status in Hong Kong, including the periods of time they had respectively spent in other countries in recent years and the possibility of their staying together as a couple elsewhere.

47.  As regards the applicant’s career prospects in Hong Kong, M2 noted that between 2008 and 2010, the applicant had only stayed in Hong Kong as a visitor, not permitted to work here. 

48.  For these reasons, I have no difficulty in rejecting Mr Kwok’s argument.  As the argument is not contained in the Form 86, and given the lack of merits, I refuse leave to amend the Form 86.

Ground (3): reasons

49.  Mr Kwok’s third point is the Permanent Secretary’s failure to give any or any adequate and intelligible reasons for her decisions.  

50.  Ms Chow, for the Permanent Secretary, contends that as a matter of law, the Permanent Secretary did not have any duty to give any reasons at all.  She does not go so far as to say that in these proceedings, the Permanent Secretary need not explain her decisions to the Court.  Far from it.  As mentioned, in the evidence filed in these proceedings, the reasons for her decision were fully explained.  Those reasons were the same as those given in M2, a contemporaneous internal document. 

51.  There is no dispute that the Permanent Secretary owes to the Court the duty of candour: Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77.  Neither is there any suggestion that the Permanent Secretary has breached the duty.  The Court therefore proceeds on the basis that we now know the full reasons for the decisions reached by the Permanent Secretary.

52.  In my view, this really is dispositive of Mr Kwok’s point under discussion, and renders it unnecessary to decide whether the Permanent Secretary was under a duty to supply reasons or the extent of that duty.

53.  The fact remains that the applicant has in these proceedings been told all the reasons for the decisions under challenge, and he has had a full opportunity to tailor his challenge by reference to those reasons.  There is no suggestion whatsoever that if the Director had supplied the reasons earlier, the applicant would or could have put in or otherwise relied on some other materials or arguments in support of his case which he cannot do now in these proceedings.

54.  In those circumstances, even if there really was a duty to supply reasons, which (hypothetically) was breached, this would not have been sufficient to found the applicant’s present challenge against the Permanent Secretary’s decisions.  Mr Kwok has very fairly said in reply submission that his complaint about reasons is not for the mere sake of getting the reasons.  The reasons are required in order for the applicant to challenge the decisions, counsel submits.  However, the reality is that in these proceedings, the applicant has been supplied with all the reasons and he is in a good position to proceed with his challenge accordingly.

55.  For these reasons, I reject Mr Kwok’s third point.

Ground (4): irrationality

56.  As to Mr Kwok’s last point on irrationality, this is a challenge based solely on the conventional Wednesbury unreasonableness ground.  There is no question of subjecting the relevant decisions to an anxious scrutiny review, as no fundamental human right is involved or relied on:  Weerachon, paras 63 to 66; MA v Director of Immigration HCAL 10/2010, 6 January 2011, Andrew Cheung J, paras 85 to 99.

57.  Under the conventional unreasonableness test, the applicant has a high threshold to overcome.  As mentioned in the local cases cited in this judgment, the court does not lightly interfere with the Permanent Secretary’s deportation decisions.  Day in and day out, the Permanent Secretary and immigration officers are faced with difficult decisions, many of which would even split families.  The court recognises that the Permanent Secretary and the immigration authorities have a very difficult task to perform, a task which both the Basic Law and the Legislature have entrusted them with.  The role played by the court is only supervisory in nature.

58.  There is little point in comparing facts in different cases.  Each case turns on its own facts.  That said, one cannot help noticing that the court has refrained from interfering with the deportation orders (for life) made in Weerachon and Bahadur, even though the respective facts in those cases were, from any perspective, much more “deserving” of intervention by the court, when compared with the facts obtaining in the present case.

59.  Returning to the facts in the present case, it has to be remembered that the applicant was merely a visitor in Hong Kong with no permission to work at the time.  Neither he nor his girlfriend were long-term residents here.  In fact, these matters, as well as many others, were considered in M2 and by the Permanent Secretary before making the deportation order. 

60.  Furthermore, one must not forget that even though a deportation order for life has been made, as has been pointed out by the Permanent Secretary in her letter of 31 August 2010 to the applicant’s solicitors, sections 54 and 55 of the Immigration Ordinance give the Secretary for Security the power to suspend and rescind a deportation order respectively.  Normally, the Secretary would consider exercising the powers if a change of circumstances can be shown.  In other words, a deportation order for life is not the end of the world for the applicant so far as his wish to return to Hong Kong sometime in future is concerned.

61.  In considering whether the decision to deport for life is Wednesbury unreasonable or not, the power to rescind or suspend the deportation order in future is part of the circumstances that the Court must bear in mind.  In my view, such powers militate against the apparent harshness of the life 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.

63.  I therefore reject this final point made by Mr Kwok.

Outcome

64.  For all these reasons, the application for judicial review is refused.  I make a costs order nisi that the applicant shall pay to the 1^st respondent her costs of these proceedings, including all costs previously reserved, to be taxed if not agreed, and that there be no order as to costs as between the applicant and the 2^nd respondent.  As noted, the applicant has not pursued, and therefore the Court has not decided on, the challenge against the 2^nd respondent’s refusal to release the applicant on recognizance.  In the Court’s provisional view, the fairest order to make is therefore not to make any costs order as between them.

65.  I thank counsel for their assistance.