AZAM ADEEL v. PERMANENT SECRETARY OF SECURITY

HCAL 1543/2022

[2022] HKCFI 3830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1543 OF 2022

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REASONS  FOR

DECISION

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A.  Introduction

1.  The Applicant is subject to a Deportation Order made on 25 October 2022, made under section 20 of the Immigration Ordinance Cap 115 (“Ordinance”). He had also previously been made the subject of a Removal Order issued on 19 April 2010, made under section 19 of the Ordinance. The Applicant has been held in immigration detention since 24 January 2022, initially pending removal and subsequently pending deportation.

2.  The Applicant made an application for a writ of habeas corpus on 20 October 2022 in HCAL 1119/2022, which I heard and dismissed on 4 November 2022: see my Decision [2022] HKCFI 3385. Part of the reasoning for dismissing the application was that the Applicant was due to be repatriated on 9 November 2022. However, under the then applicable removal policy, the repatriation was impeded by his having issued a further application to the Court of Appeal.

3.  The Applicant subsequently, on 22 November 2022, made a second application for a writ of habeas corpus, in HCAL 1306/2022, with a supporting affirmation dated earlier on 16 November 2022, which I directed to be fixed for hearing on 23 December 2022.

4.  In the meantime, the Applicant filed a Form 86 dated 20 December 2022 in this action (HCAL 1543/2022), by which he sought leave to apply for judicial review in respect of the Deportation Order made against him on 25 October 2022. He requested an oral hearing.

5.  I conducted that oral hearing immediately before I heard the submissions on the second habeas corpus application in HCAL 1306/2022. Having done so, I dismissed the application for leave to apply for judicial review to challenge the Deportation Order, for reasons which I said I would hand down later.

6.  These are my Reasons for Decision.

B.  The Intended Challenge

7.  No specific relief was sought in the Form 86. Nor does it identify the grounds on which relief was sought.

8.  The Applicant’s affirmation in support simply stated in the body of the affirmation:

I am the Applicant herein. Secretary of Security made Decision dated 25 October 2022 to deport me. The decision was error of law, and I need oral hearing under Rule 53, 3(3) of the Rules of High Court.

9.  Attached to the affirmation were various documents, which mostly do not explain the basis of the application, but including five handwritten pages of submissions which essentially focus on the proper approach to determination of a torture claim and any related deportation. Those submissions in full were as follows (sic):

Grounds:

1.  It must be bear in mind that the life and limb are in jeopardy and (the applicants) fundamental human right not to be subjected to torture is involved which is why high standard of fairness are required:

St v. director of immigration (2014) 4 HKLRD 277

2.  The decision has the effect of finally disposing of the applicants torture claims and making liable to be removed. This entails real and significant implications for the applicant substantive right not to be subject to torture and him right to non-refoulment protection. In other words the decision has the significant effect on the applicant torture claim.

3.  High standard of fairness are required in determination of a torture claim on the part of the decision-maker

4.  In secretary for security v Sakthevel Prabakar (2005) 1 HKLRD 289, LicJ Stafod that: Standard of fairness

“43. The question in this appeal concern the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportees claim that he, he would be subject to torture if returned - to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What the appropriate standards of all aspects relating to the decision in question, including its context and its nature and subject matter:

R v Home Secretary, ex parte Doody [1994] 1 AC 531 at 560 D.G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportees torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination. The court should not usurp that official responsibility. But having regard to the gravity of what is at stake, the court will on judicial review subject the Secretary determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.

R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 at 531 E.G.

If the courts decided that they have not been met, the determination will be held to have been made unlawfully. (…)

51. In considering the potential deportees torture claim, the necessary high standards of fairness should be approached as follows :

(1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim (…) emphasis added)

5. It is submitted that the adjudicator defect in a procedurally unfair manner in dealing with the applicants application without properly assess the credibility of the applicant.

6. A decision of an administrative body exercising discretionary decision-making function can be set aside if the resulting decision is “unreasonable” the classic anti-culation of the doctrine of reasonableness was set out by the court of appeal in England in Associated Provincial Picture Houses Limited v Wednesbury Corporation (1984) 1 KB 223, in which Lord Greene M.R. stated that:

“The court is entitled to investigate the action of the (public body concerned) with a view to seeing whether they have taken into account matters which they ought not to take into account matters. Once that question is answered in favour of the local authorities, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the (public body concerned) have contravened the law by acting in excess of the powers which Parliament has confided in them.”

7. In R v Ministry of defence ex p. smith, a modified Wednesbury test was applied it was decided that: the court may not interfere with exercise of an administrative discretion on substantial grounds have where the court is satisfied that the decision is unreasonable is the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision maker has exceeded the margin of appreciation the human rights, the mere the court will require by way of justification before it is satisfied that the decision is reasonable…”

10.  In his oral submissions at the hearing, the Applicant first made various submissions relating to his family circumstances and why he says his life would be in danger if he were to be repatriated. He handed up photographs, intended to show the genuine nature of the religious marriage ceremony entered into with his wife and the care for his stepson, and also a letter from his wife. But, after I explained that the purpose of his application was to demonstrate that there were arguable public law grounds to challenge the Deportation Order as might justify the grant of leave to apply for judicial review, the Applicant said he would rely on the written submissions for that purpose.

11.  In summary, the submissions point out that a deportation order might (in certain circumstances) have the effect of finally disposing of an applicant’s torture claims and make him liable to be removed, and because that would entail real and significant implications for the applicant’s substantive right not to be subject to torture and human right to non-refoulement protection, a high standard of fairness must be applied by the decision-maker. Further, the Court will conduct a rigorous examination and give anxious scrutiny to ensure that the required high standards of fairness have been met.

12.  I have considered those submissions, but they are misplaced in the context and circumstances of the intended challenge.

13.  The Applicant’s torture/non-refoulement claim (“NRC”) has been the subject of various consideration since it was first raised in 2007. By 2016, the Director of Immigration had rejected his NRC on all applicable grounds. He appealed to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal in 17 September 2017 (“Board Decision”). The Board did so at least in part because the Applicant failed to appear for the Board hearing on 18 July 2017 – shortly after the Applicant had absconded, for what turned out to be a very lengthy period of about 4½ years from April 2017 to October 2021.

14.  The three-month period within which the Applicant could apply for leave for judicial review (“JR”) expired on 17 December 2017. But the Applicant did not file his leave application until 8 February 2022, more than 4 years late. As the chronology indicates, the leave application was filed shortly after he was taken into immigration detention pending removal, and can be seen as a reaction to detention.

15.  The leave application was rejected on 13 July 2022 (“CFI Decision”). That followed a hearing scheduled for 12 May 2022, at which the Applicant failed to appear. On 20 May 2022, the Court gave him directions by letter to file a statement within 14 days stating the reasons for not attending the hearing and for the more than 4-year delay in making the leave application. As recorded in the CFI Decision, in letters dated 6 and 18 June 2022, the Applicant had then stated his wish to withdraw his leave application, and to return to Pakistan “as his problem there was already solved”. He did not offer any explanation for the delay. Nevertheless, the CFI Decision did contain an assessment of the Board Decision, which it held to be “utterly without fault”, and the application for the necessary extension of time was refused in the overall circumstances.

16.  It is worthy of note that the CFI Decision was an assessment of the application for an extension of time on its merits, and the CFI Decision was not simply based upon either (a) the Applicant’s non-appearance at the hearing or (b) the Applicant’s stated wish to withdraw the leave application. This is also made clear by the CFI’s subsequent letter dated 18 August 2022, sent to the Applicant apparently in response to his own letter to the CFI on 11 August 2022.

17.  Further, the 14-day period within which the Applicant could appeal against the CFI Decision expired on 10 August 2022. Only on 6 October 2022 did the Applicant make an application to the CFI, seeking leave out of time to appeal from the CFI Decision to the Court of Appeal. On its face, the summons did not identify any grounds which might properly support the application.

18.  In any event, the making of the Deportation Order did not have the effect of determining the Applicant’s NRC, by which he asserted his fundamental human right not to be subjected to torture and that his life and limb are in jeopardy. That determination (applying the required high standard of fairness) had already occurred some years beforehand, and the Applicant’s belated and equivocal steps to challenge that determination have failed.

19.  Further, I cannot see any other public law ground as might arguably lead to quashing the decision to make the Deportation Order. The Applicant was given the opportunity to make submissions in advance of the making of the order, and did so. It is also trite that family circumstances amount only to compassionate considerations, and if taken into account would be a matter for the decision-maker to weigh.

C.  Result

20.  The Applicant did not raise any reasonable grounds of challenge with any reasonable prospect of success, so he could not meet the necessary hurdle for the grant of leave to apply for judicial review.

21.  For that reason, I dismissed the application, with no order as to costs.