SHABIR SOHAIL v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

HCAL 1374/2022

[2023] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1374 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is a subject of a Deportation Order issued on 20 May 2021by the Permanent Secretary for Security (“Secretary”), the 1^st putative respondent. In about May 2022, the Applicant asked for the Deportation Order to be suspended which request was refused by the Secretary on 8 September 2022 (“Suspension Refusal”).

2.  By Form 86 dated 30 November 2022, the Applicant seeks leave to apply for judicial review. The Form 86 does not set out any intended grounds of review, and the supporting affirmation simply produces a copy of the Deportation Order and the Suspension Refusal letter. Further, in the Form 86, only the Suspension Refusal is identified as the decision the subject of the intended challenge (not the Deportation Order.) But the primary relief sought is to quash the Deportation Order, with the alternative of suspending or rescinding it. I will treat both the Deportation Order and the Suspension Refusal as the intended targets of challenge.

3.  I also note that both decisions were made by the Secretary only, though the Applicant also names the Director of Immigration (“Director”) as the 2^nd putative respondent in this Application.

4.  The Applicant has asked for an oral hearing if leave is not granted on paper. I thus gave directions to bring the matter to a hearing fixed for 20 January 2023.

5.  At the hearing, the Applicant appeared in person with the benefit of an Urdu/English translator. Both the Secretary and the Director were represented by Mr Andrew Tong, Government Counsel. Mr Tong had previously filed an initial response, upon which he relied as his skeleton submissions for the hearing.

B.  Background Facts

B.1  The Applicant

6.  The Applicant is a Pakistani national born in 1978. In 2013, he married his wife (“Wife”) in Pakistan. The Wife had resided in Hong Kong before the marriage, and she acquired Hong Kong permanent resident status in October 2015.

7.  On 30 June 2014, the Applicant was granted a dependent visa to reside in Hong Kong as the Wife’s spouse. The dependent visa was last extended on 24 August 2020, with limit of stay until 30 June 2023.

8.  The Applicant and the Wife have two daughters, who were born in 2015 and 2016 respectively.

9.  The couple are currently living separately, as a result of circumstances covered below.

B.2  Criminal Conviction

10.  On 8 February 2021, the Applicant was convicted, on his own guilty plea, of criminal intimidation. The victim of the crime was the Applicant’s own Wife. The Applicant was sentenced to 8 months’ imprisonment. He did not lodge any appeal.

B.3  Making of Deportation Order

11.  On 24 February 2021, whilst the Applicant was serving his sentence, he was served with a “Notice of Consideration of Deportation” and was interviewed by the Immigration Department (“ImmD”) in prison.

12.  The Applicant objected to the making of the Deportation Order on the basis that he had family living in Hong Kong. By way of written representation, he again reiterated that he had family in Hong Kong, but he also said that he had lived in Hong Kong for more than 7 years (which, as the chronology indicates, and insofar as it suggests ordinary residence, is incorrect).

13.  The Wife was also interviewed by the ImmD in March 2021. She said the couple’s relationship turned sour in 2018 when the Applicant became addicted to alcohol and refused to provide financial support to the family. She and the daughters then resorted to Government welfare. The Wife pleaded for the Applicant to be allowed to stay in Hong Kong. She said the Applicant was remorseful, and she wanted to give him one last chance because his physical presence was important to the daughters. She did not want to cut the relationship with the Applicant for now. (In passing, I note that that representation was made about 1 year before the final hearing for the daughters’ custody: see below.)

14.  The Deportation Order was made on 20 May 2021. It was made under section 20(1) which authorizes the Secretary (as the delegate of the Chief Executive) to make such an order against an immigrant if (a) he has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years or (b) his deportation from Hong Kong is deemed to be conducive to the public good.

15.  The Deportation Order was made under the first limb. The Applicant only had the one criminal conviction on his record which was relied upon by the Secretary to make the order.

B.4  Immigration Status

16.  As the chronology indicates, when the Deportation Order was made on 20 May 2021, the Applicant’s period of continued residence would be just short of the required 7 years for him to obtain permanent residency under Schedule 1 of the Immigration Ordinance Cap 115 (“Ordinance”). In any event, he had not acquired permanent resident status by that time. Once the Deportation Order was made, it would operate to invalidate any permission or authority to land or remain in Hong Kong given before the order is made or while it is in force: see section 20(7) of the Ordinance. Therefore, it is no now longer possible for the Applicant to meet the 7-year requirement.

17.  The Applicant is currently on recognizance.

B.5  Family Court Orders

18.  On 4 February 2021, shortly before the Applicant’s criminal conviction and sentence, the Wife applied for the sole custody, care and control of the two daughters. Interim orders were granted to the Wife on 7 May 2021. The substantive application was granted in March 2022, after a 2-day hearing. The Applicant was granted defined access to the daughters. A restraining order and non-molestation order were also made against the Applicant, and authorization was made for Police to arrest him without a warrant if the Applicant was to be suspected of in breach of the orders.

19.  The proceedings in the family court were not open to public. It is sufficient to say that the Wife’s case was that the Applicant was far from being a caring and responsible husband or father, and had subjected her and the daughters to some extent of abuse for years. The Wife gave evidence that the Applicant was involved very little in the children’s lives; that whenever she asked him for money, the Applicant would shout at her and assault her; that the Applicant would also shout at and sometimes even hit the children. She gave evidence about the incident which gave rise to the criminal conviction, including her original complaint to the police that the Applicant had assaulted her with fists and threatened her with a knife, and that when she refused the Applicant’s demand that she should withdraw her complaint, he threatened to kill the Wife and take the daughters back with him to Pakistan. She also gave evidence that even after his release from prison in December 2021, the Applicant had twice visited her, with the police having to be called, and that the Applicant had repeated her called her afterwards to try to persuade her to drop the case and to reconcile with him, being made with threats, including that he would kill her. The Court accepted the Wife’s evidence as being truthful.

B.6  Request for Suspension

20.  By letter dated 24 May 2022 and 1 June 2022, the Applicant through his legal representative asked for the Deportation Order to be suspended under section 54. It was said that (a) the offence committed by the Applicant was not that severe and was relatively moderate, (b) the Applicant has a wife and two daughters in Hong Kong and deporting him would affect the rights of his family, (c) the Government did not have any published policy on how the deportation power under section 20 would be exercised, which would give rise to a strong case for judicial review, (d) no reason was given why the Secretary decided to deport the Applicant for life, and (e) the Applicant is minded to lodge a torture claim if he is to be deported.

21.  The Applicant was invited to submit further supporting information or evidence, but none was provided.

22.  On 8 September 2022, the Secretary refused the request to suspend the Deportation Order. The internal minute shows that the Director (whose view was endorsed by the Secretary) was of the view that the Deportation Order was made in consequence of the Applicant’s criminal conviction and that he would still be able to come to Hong Kong to visit the family after he is deported. Similar comments were also seen in the internal minutes when the Deportation Order was made.

C.  Is the application reasonably arguable?

23.  As already stated, no proposed grounds of review were identified in the Form 86 or the Applicant’s supporting affirmation. Neither did the Applicant file any written submissions in reply to the Secretary/Director’s initial response, despite leave being granted for him to do so. The absence of any properly identified intended grounds for review, contrary to the mandatory requirement of the Rules, is itself a sufficient reason to dismiss this application for leave to apply for judicial review.

24.  Also, the apparently intended challenge to the Deportation Order itself is well out of time, and no explanation has been offered as to why time should be extended.

25.  At the oral hearing, the Applicant submitted that:

(1)  He has two children born in Hong Kong, and they are too young or too little for him to leave Hong Kong now, as they may not remember him in future. It is impossible for him to leave.

(2)  That is different from the case had they been older children.

(3)  When he tells his daughters he may need to leave Hong Kong, they start crying.

(4)  Other than the one criminal conviction, he has a clear record in Hong Kong, and everything he has done was very legal.

(5)  He could (and did) show a certificate of recognition as an outstanding security guard, awarded to him in 2016.

(6)  He was given the Deportation Order for a “small matter, a domestic matter”.

26.  Just as in writing, the Applicant was unable to articulate orally any public law grounds to challenge either the Deposition Order or the Suspension Refusal.

27.  The relevant analysis of any potential merit in this application begins with the fact that it cannot be disputed that the making of the Deportation Order was lawfully authorized by section 20(1).

28.  It is settled that a person who has no right to remain in Hong Kong cannot rely on the family rights of his wife and children to establish any right to remain here, even if the wife and children are Hong Kong permanent residents. Further, the Secretary is not under any legal obligation to take into account family ties as humanitarian or compassionate circumstances. If he did have regard to these considerations, it is up to him to decide how much weight is to be put on any such factor. The Court would intervene only if there were unfairness in the process, or other proper basis for interfering on public law grounds. In the premises, all arguments are really but a plea for the Secretary to exercise his discretion in the Applicant’s favour.

29.  Given that the issuance of the Deportation Order was authorized by law and that no procedural errors were identified by the Applicant in either its grant or the Suspension Refusal, it appears to me that the only administrative law ground upon which the Applicant might rely is a rationality challenge. The threshold is a high one. I do not believe that the Applicant has put forward any grounds as might cross that threshold.

30.  The Secretary has taken into account the Applicant’s family circumstances, and I do not believe that his view could be criticized as irrational in the public law sense. Indeed, any impact on the Applicant himself or his family brought about by the making or maintenance of the Deportation Order might have relatively little bearing on this application. Judging from the Family Court’s decision over the daughters’ custody, and the granting of the restraining order and the non-molestation order, it might be thought there is likely little weight to any argument attempting to justify his physical presence in Hong Kong for the benefit of his family. But matters of such weight are for the Secretary, unless there is a proper basis for interference on public law grounds. Suffice it to say that there is a disconnect between the criminal court and Family court materials, and what is said by the Applicant himself.

31.  Nor do I think that it was irrational for the Secretary to issue and then maintain the Deportation Order on the basis that – as the Applicant’s lawyer put it – the offence of which the Applicant was convicted was “not that severe and relatively moderate”. The Applicant was sentenced to 8 months’ imprisonment, and in any event the crime committed was a deportable offence under section 20.

32.  I might also add that I do not think many persons would regard the Applicant’s actions as described by the Family Court as amounting only to a “very small matter”, as the Applicant sought to describe it during the hearing.

33.  As to the point that there was no published policy for the exercise of powers under section 20 – also raised by the Applicant’s lawyers in the 24 May letter, Mr Tong has correctly pointed out that there is generally no public law duty requiring decision-makers to publish policies setting out how they would exercise their public law powers: see Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, at §66.

34.  In conclusion, there is nothing in this application to suggest that the making of the Deportation Order or the Refusal Suspension was unlawful, Wednesbury unreasonable, or the result of any failure to attain any relevant standard of fairness. The application does not disclose any reasonably arguable grounds of review.

D.  Conclusion

35.  For the above reasons, I dismiss the application.

36.  As to costs, and though Mr Tong invites costs to be awarded to the putative respondents, it seems to me in the overall exercise of my discretion that I should make no order as to costs.