JAVID KAMRAN v. COMMISSIONER OF REGISTRATION AND ANOTHER

HCAL 1324/2019
HCAL 1619/2019
and HCAL 2220/2019
(Heard together)

[2021] HKCFI 747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1324 OF 2019

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(Heard together)

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D E C I S I O N

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Introduction[1]

1.  The Applicant has filed 3 Forms 86.  They are:

(a)  dated 17 May 2019 (under HCAL 1324/2019) for leave to apply for judicial review against:

(i)  the decision of the Commissioner of Registration (the “Commissioner”) dated 16 November 2017 refusing the Applicant’s application for a Hong Kong permanent identity card (the “Commissioner’s 16/11/17 Decision”), and

(ii)  the Determination of the Registration of Persons Tribunal (the “Tribunal”) on 15 April 2019 dismissing the Applicant’s appeal against the Commissioner’s Decision (“Decision 1”);

(b)  dated 13 June 2019 (under HCAL 1619/2019) against the decision of the Director of Immigration (the “Director”) dated 18 March 2019 that the Applicant’s application for verification of eligibility for a Hong Kong permanent identity card (“VEPIC”) be refused (“Decision 2”); and

(c)  dated 5 August 2019 (under HCAL 2220/2019) against the decision of the Director dated 17 May 2019 that “[the Applicant’s] H.K.I.D. Card no [sic.] valid and [the Applicant’s] stay in HK not valid for the time being” (“Decision 3”).

2.  On 5 May 2020, I directed that there be an inter partes hearing for all 3 leave applications.  At the same time, I gave some directions on the service of documents on filing of evidence. 

3.  This is the hearing of those applications.

Representation

4.  The Applicant appears in person.

5.  The Commissioner and Director are represented by Ms Isabel Tam on the instruction of the Department of Justice.  The Tribunal as usual takes a neutral stance.

The affirmatory evidence

6.  The Applicant has filed 3 affirmations.  They are dated 16 May 2019, 13 June 2019 and 5 August 2019.

7.  On behalf of the Commissioner and Director, altogether 4 affirmations have been filed:

(a)  the affirmation of Ms Yeung Yat Mun Amanda (“Ms Yeung” and “Yeung’s Aff”) dated 6 November 2019 filed in HCAL 1324/2019 and HCAL 2220/2019.  Ms Yeung is the Acting Assistant Principal Immigration Officer of the Registration of Persons sub-division of the Immigration Department;

(b)  the affirmation of Ms Wong Mak Tak Glady (“Ms Wong” and “Wong’s Aff”) dated 6 November 2019 filed in HCAL 1324/2019 and HCAL 2220/2019.  Ms Wong is the Acting Chief Immigration Officer of the Immigration Department;

(c)  the affidavit of Ms Ng Yin Ha Windsor (“Ms Ng” and “Ng’s Aff”) dated 6 November 2019 filed in HCAL 1324/2019 and HCAL 2220/2019. Ms Ng is a Senior Executive Officer (Immigration) of the Security Bureau (D Division); and

(d)  the affirmation of Mr Lee Koon Yu Michael (“Mr Lee” and “Lee’s Aff”) dated 26 June 2019 filed in HCAL 1619/2019. Mr Lee is a Chief Immigration Officer (Right of Abode Section) of the Immigration Department. 

Summary of the Facts

8.  The relevant events took place over some years.  They need to be set out.  But once set out and properly looked at, the issues and the resolution thereof, as will be shown below, become clear.

9.  On 9 March 1998, the Applicant arrived in HK as a visitor on the strength of his Pakistani passport (“Passport 1”) under the name of Ahmed Kamran.  He was permitted to remain as a visitor, with limit of stay last extended until 29 March 1998.

10.  On 14 March 2000, the Applicant was arrested by the Police when he was found to be in possession of a Pakistani passport belonging to another person.  On 5 April 2000, he was convicted of breach of condition of stay and theft.

11.  On 30 May 2000, a deportation order[2] (the “Deportation Order”) was made by the Secretary for Security against the Applicant.  The Deportation Order prohibits the Applicant from being in Hong Kong “at any time thereafter”.

12.  On 8 June 2000, the Applicant was deported to Pakistan.

13.  On 24 September 2001, the Applicant married his first wife (the “First Wife”) in Pakistan.  The First Wife is a Hong Kong permanent resident.

14.  On 8 October 2001, the Applicant arrived in Hong Kong on the strength of Pakistani passport under his current name, ie Javid Kamran (“Passport 2”). Passport 2 is different from Passport 1.  He was permitted to remain as a visitor until 22 October 2001.

15.  On 19 October 2001, the Applicant applied for an extension of stay with change of status to a dependant to join the First Wife.  That application was approved on 18 April 2002.  His permission to remain in Hong Kong as a dependant had since been extended a number of times.  The last extension was until 18 April 2006.  Also on 18 April 2002, the Applicant registered for and was issued with a Hong Kong identity card.

16.  In the meantime, on 20 May 2003, the Applicant was arrested by the Police for the offence of trafficking in dangerous drugs.  He was then also identified as a deportee.

17.  On 20 January 2004, the Applicant was convicted of the offences of trafficking in a dangerous drug and breach of deportation order.  He was sentenced to a total of 3 years’ imprisonment.  On 23 August 2004, he was convicted further of 2 counts of trafficking in dangerous drugs, and one count of dealing with property known or believed to represent the proceeds of an indictable offence.  He was sentenced to 8 years’ imprisonment, which was reduced subsequently on 12 April 2005 upon appeal to 6 years and 4 months.  That sentence was to commence after he had served 15 months of the sentence earlier imposed.

18.  Between about April 2004 and December 2011, the Applicant and the First Wife had on a number of occasions made submissions to the Director, the Permanent Secretary for Security (“PS for S”) and the Chief Executive and requested that the Applicant be allowed to stay in Hong Kong.

19.  On 7 July 2006, the Applicant lodged a refugee claim to the United Nations High Commissioner for Refugees (“UNHCR”, and “UNHCR Claim”). The case was closed on 31 July 2008.  On 6 October 2008, the Applicant requested the UNHCR to reopen his UNHCR Claim.  The request was refused on 6 October 2010.

20.  On 22 October 2007, the Applicant lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim” or “CAT Claim”) to the Immigration Department. 

21.  On 6 February 2008, the Applicant was released from prison.  He was then detained pending removal under section 32(3) of the Immigration Ordinance Cap 115 (the “IO”).  The detention ended on 13 November 2008 when the Applicant was released on recognizance pursuant to section 36 of the IO.  Relevant to the Applicant’s applications is this period of detention between 6 February and 13 November 2008, which will be referred to as the “Detention Period”.

22.  On 18 February 2008, the Applicant made a request to the Director to be allowed to stay in Hong Kong to wait for the result of the Torture Claim.

23.  By letter of 9 January 2010, Messrs Yip & Liu (“Y&L”), solicitors for the Applicant, made certain representations to the PS for S.  Having stated the Applicant’s case, Y&L stated that:

“ We therefore urge you to review our client’s case whether you agree to suspend or rescind our client’s Deportation Order. We sincerely wish you can re-consider our client’s case on humanitarian grounds. Our client indicated that he will not attend any torture claim interview until your answer and he also confirms to cancel or withdraw any claim against the Director of Immigration, if any.”

24.  On 26 February 2010, the Secretary for Security stated that unless contrary view was received from the Applicant, his request for suspension or rescission of the Deportation Order would be processed without taking into consideration his CAT Claim.

25.  Following further correspondence, the Secretary for Security by letter of 15 March 2010 notified the Applicant that:

“ In light of the foregoing [correspondence], your request for suspension or rescission of the [Deportation Order] made against you will now be processed without taking into consideration your claim under CAT. Your grounds and representations put forth, other than those relating to your CAT claim, will be considered by the Permanent Secretary for Security. You will be informed of the Permanent Secretary of Security’s decision once available.”

26.  On 6 July 2010, the Secretary for Security received the Director’s memo of 5 July 2010[3] (the “5/7/2010 DI Memo”) making the recommendations that (1) the Applicant’s request for rescission of the Deportation Order be rejected, but (2) having considered the circumstances of the case, the Deportation Order be suspended for a year on compassionate grounds.

27.  From 7 July 2010 to 23 May 2011, the Security Bureau sought legal advice from the Department of Justice three times on the Applicant’s request for suspension or rescission of the Deportation Order. 

28.  On 6 September 2010, the Security Bureau made inquiry with the Immigration Department regarding the progress of the Torture Claim.  On 7 September 2010, the Immigration Department replied that it might take some time before the Torture Claim could be processed.

29.  On 9 December 2011, further representations were made on behalf of the Applicant by another firm of solicitors for rescission of the Deportation Order.  The Secretary for Security was urged to make a decision within the following 14 days.

30.  On 27 January 2012, the Applicant withdrew his Torture Claim.

31.  On 1 February 2012, the Security Bureau sought comments from the Immigration Department on the further representations received.  On 3 February 2012, the Immigration Department replied that the Director maintained his recommendation to suspend the Deportation Order for one year.

32.  By letter of 23 February 2012[4] to the Applicant’s legal advisers, the PS for S informed the Applicant of his decision to suspend the Deportation Order for one year.  In that letter, the PS for S said that:

“ … having regard to the particular circumstances and solely based on compassionate grounds of your client’s case, in exercise of the powers conferred on the Chief Executive by section 54(1) of the Immigration Ordinance (Chapter 115) and delegated to me pursuant to section 63 of the Interpretation and General Clauses Ordinance (Chapter 1), I hereby suspend the deportation order … for a period of one year with effect from the date of this letter…

The suspension will be rescinded should [the Applicant] breach any of the above conditions or if he is convicted of any offence during his stay in Hong Kong.  Rescission of the suspension will result in the deportation order being in force again and [the Applicant] will then be deported from Hong Kong.”

33.  In the subsequent years, further yearly suspensions had been granted. The last suspension was granted up to 22 February 2018.  Relevant to the Applicant’s applications is this culminated period of suspension between 23 February 2012 and 22 February 2018.  I will refer to this period as the “Suspension Period”.  

34.  In addition to the Detention Period and the Suspension Period, also relevant to the Applicant’s applications is the period between the end of the Detention Period and the beginning of the Suspension Period.  That period, which began on 14 November 2008 and ended on 22 February 2012, will be referred to as the “Waiting Period”.

35.  On 10 July 2012, the Applicant was granted permission to remain in Hong Kong on dependent status from 10 July 2012 to 22 February 2013 (subsequently extended on 5 occasions to 21 February 2018)[5]. In the letter of 10 July 2012 from the Director notifying the Applicant of that decision[6], it was said that:

“ The Director has given you permission to remain in Hong Kong on dependant status from 10 July 2012 to 22 February 2013. Your previous permissions to remain since your entry as visitor on 8 October 2001 are treated null and void, as a result of which the continuity of ordinary residence in Hong Kong (if any) has been broken. The permission now granted to you to stay in Hong Kong does not cure the break and in calculating the length of your ordinary residence in Hong Kong, 10 July 2012 will be the starting date.”

36.  The stance of the Director is that the period of the Applicant’s ordinary residence actually only started on 31 August 2012 when he lawfully landed in Hong Kong with his Hong Kong identity card.  Assuming that be so, the mistake in the letter of 10 July 2012 was one in the Applicant’s favour.

37.  On 12 July 2012, the Applicant applied for and was issued with a smart Hong Kong identity card. 

38.  On 14 August 2012, the Applicant departed from Hong Kong.  On 31 August 2012, the Applicant entered and landed in Hong Kong with the permission of the Director on the strength of his Hong Kong identity card under his current identity[7].

39.  On 10 February 2015, the Director received the Applicant’s 1^st application for VEPIC (the “2015 VEPIC Application”)[8]. The Applicant’s claimed period of ordinary residence in Hong Kong was stated to be from 7 February 2008 to 7 February 2015[9].

40.  By letter of 18 May 2015[10], the Director informed the Applicant’s legal representatives that the 2015 VEPIC Application was refused.  The reasons for the refusal were set out in that letter, as follows:

“ … In this application, the period should be counted from 11 February 2008 to 11 February 2015.[11]

According to our record, your client was a returned deportee who arrived in Hong Kong on 8 October 2001 in breach of the deportation order issued against him on 30 May 2000.  Pursuant to Section 20(7) of the Immigration Ordinance, 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 while it is in force.  Since 23 February 2012, the deportation order against your client had been suspended.  On 10 July 2012, the Director gave your client permission to remain in Hong Kong on dependent status.  Your client’s previous permissions to remain since his entry as visitor on 8 October 2001 are treated null and void, as a result of which the continuity of ordinary residence in Hong Kong (if any) has been broken.  The permission granted to your client (on 10 July 2012) to stay in Hong Kong did not cure the break and in calculating the length of his ordinary residence in Hong Kong, 10 July 2012 would be the starting date. Therefore, we are not satisfied that your client has ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before this application.”

41.  On 16 November 2017, the Applicant applied to the Commissioner for a Hong Kong permanent identity card.  It was refused by the Commissioner by letter on the same day[12] (ie the Commissioner’s 16/11/17 Decision), on the basis that there was insufficient evidence to show that the Applicant had the right of abode in Hong Kong.  The letter of 18 May 2015 was annexed to the reply, which refers to it.

42.  By a notice of appeal dated 17 November 2017, the Applicant appealed to the Tribunal against the Commissioner’s 16/11/17 Decision. 

43.  In the meantime, as has been mentioned above, the Deportation Order had since 23 February 2012 been suspended on a yearly basis on a number of occasions.  By letter of 22 February 2017[13], PS for S notified the Applicant that the Deportation Order would be suspended for another year with effect from 23 February 2017.  The last paragraph of that letter reads:

“ The suspension will be rescinded should you breach any of the above conditions or if you are convicted of any offence during your stay in Hong Kong. Rescission of the suspension will result in the deportation order being in force again and you will then be deported from Hong Kong.”

44.  By letter of 25 December 2017[14], the Applicant and the First Wife made another request to the Director and Secretary for Security for rescission or suspension of the Deportation Order.

45.  On 12 January 2018, the Applicant made an application to the Director for extension of stay as a dependant of the First Wife.

46.  By letter dated 16 January 2018[15] to the Director and Secretary for Security , the Applicant requested to stay in Hong Kong with his family.  He further informed the Director and the Secretary for Security that he had married another person (the “Second Wife”) on 3 June 2016 in Pakistan and that they had a child born in the Philippines on 11 January 2017.  He further said that the Second Wife and their child were in the Philippines and had no plan to come to Hong Kong,

47.  On 22 March 2018[16], the PS for S rejected the Applicant’s request for rescission or suspension of the Deportation Order.  In that letter, it was said, amongst other things, that:

“ … Having taken into account all the circumstances of the case, the Permanent Secretary is not able to find sufficient justification for suspending your deportation order. In the circumstances, the decision to deport you from Hong Kong for life still stands.”

48.  By letter of 23 May 2018[17], the Director informed the Applicant that:

“ … As you are currently a subject of a deportation order which is in force, your application for extension of stay will not be further processed at the present stage.”

49.  The Applicant’s appeal against the Commissioner’s 16/11/17 Decision was heard by the Tribunal on 15 June and 22 August 2018.  The Tribunal’s written determination is dated 15 April 2019 (the “Tribunal Determination”)[18]. The Appeal was dismissed (ie Decision 1).  The reasoning of the Tribunal was, in gist[19]:

(a)  the Deportation Order was suspended between 23 February 2012 and 21 February 2018;

(b)  the Applicant’s stay in Hong Kong during that period was lawful and ordinary residence within the meaning of sections 2(4) and 20(7) of the IO, and §2(d) of the Schedule to the IO;

(c)  that period does not add up to 7 years;

(d)  On 22 February 2018, the Deportation Order was revived.  The continuity of the ordinary residence of the Applicant in Hong Kong was broken on that day;

(e)  since the Applicant had failed to meet the requisite 7-year ordinary residence requirement, it is not necessary to make a finding on whether the Applicant had fulfilled the permanence requirement.

50.  On 25 February 2019, the Director received the Applicant’s 2^nd application for VEPIC dated 23 February 2019 (the “2019 VEPIC Application”)[20]. The Applicant’s claimed period of ordinary residence in Hong Kong was stated to be from 22 February 2012 to 22 February 2019[21].

51.  By letter of 18 March 2019[22], the Applicant was informed that his 2019 VEPIC Application was refused (ie Decision 2).  In that letter, it was said, amongst other things, that:

“ According to our record, you were a returned deportee who arrived in Hong Kong on 8 October 2001 in breach of the deportation order issued against you on 30 May 2000. Since 23 February 2012, the deportation order against you had been suspended. On 10 July 2012, the Director gave you permission to remain in Hong Kong on dependant status and subsequent extension on the same condition was last extended until 21 February 2018. On 22 March 2018, you had been informed by The Government of the HKSAR Security Bureau that your request for suspension of deportation order was refused. In such connection, your application for extension of stay would not be further processed at the present stage. Hence, you have no valid limit of stay in Hong Kong since 22 February 2018. Hence, we are not satisfied that you have ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date when you applied for the status of permanent resident of the HKSAR …”

52.  From May 2019 to October 2019, the Immigration Department made repeated requests to the Applicant and his legal representatives for the Applicant to attend the office of the Immigration Department for “immigration formalities”, namely arrangements for issuance of a Form No 8 — Recognizance to the Applicant under section 36 of the IO[23]. In the letter of 17 May 2019[24], the Director said:

“ In view of that you have no valid stay in Hong Kong for the time being and your Hong Kong identity card is no longer valid, you are requested to attend an interview on or before 22 May 2019 (Wednesday) at our office … for immigration formalities.”

That is Decision 3 which is under challenge.

53.  The Applicant has not attended the Immigration Department for the making of those arrangements.

The proposed grounds

54.  The Applicant’s main grounds may be summarized as follows.

55.  In respect of HCAL 1324/2019:

(a)  as set out in Form 86, that:

(i)  “The Effect of the unlawful detention period of the Applicant from 6 February 2008 to 13 November 2008 should be counted as the ordinary residency”[25];

(ii)  “The Period from 14 November 2008 till 22 February 2012 shall be counted as ordinary residency”[26];

(b)  in the course of his oral submissions, the Applicant relied heavily on the 5/7/2010 DI Memo and submitted that by the date of that Memo, the PS for S already had all the information for him to make the decision to suspend the Deportation Order.  He submitted that the delay was misuse of power, such that 5 July 2010 should be taken as the time when the Deportation Order was suspended;

(c)  He also relied on humanitarian considerations.

56.  In respect of HCAL 1619/2019:

(a)  se set out in Form 86:

(i)  “The issue in the present case is therefore whether the waiting period pending for deportation should be treated as suspension of the Deportation Order …”;

(ii)  The Deportation Order is under challenge.  “Director of Immigration decisions of 18^th March 2019 is unlawful because deportation order has no final decision yet.  Director cannot refuse my application based on deportation order which is legally challenged and under process for further decision.  He should wait for final decision”;

(b)  He made the further point in the course of his oral submissions that he had Hong Kong identity card till 17 May 2019 and “they should consider me as a Hong Kong resident till 17 May 2019 as I was in Hong Kong all the time”;

(c)  He also relied on humanitarian considerations.

57.  In respect of HCAL 2220/2019:

(a)  Decision 3 is unlawful because the basis of that Decision, namely the matter of the Deportation Order was “under re-consideration” by the PS for S;

(b)  He also relies on humanitarian considerations.

Threshold for leave

58.  The test for granting leave is reasonable arguability — Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, at §§14-17.  The burden to establish the same is on the applicant.

59.  The Applicant seeks to rely on Sae-Ang Paisarn v Director of Immigration [1989] 1 HKLR 205.  That case concerned whether the Director of Immigration has the power under the IO to vary a limit of stay by enlarging it after its expiry.  It does not assist the Applicant.

The law

60.  Article 24(4) of the Basis Law stipulates as follows:

“ The permanent residents of the Hong Kong Special Administrative Region shall be:

…

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

…

(4)  Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;”

61.  As to the meaning of “ordinarily resided”, Ma CJ explained in Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45 at §81, that:

“ It is always necessary to examine the factual position of the person claiming to be ordinarily resident to see whether there are any special features affecting the nature and quality of his or her residence. If such features exist, one asks whether they result in that person’s residence being qualitatively so far-removed from what would traditionally be recognized as ‘ordinary residence’ as to justify concluding that he or she is not ‘ordinarily resident’. This is necessarily a question of fact and degree and the outer boundaries of ‘ordinary residence’ are incapable of precise definition. But the exercise is necessary since the meaning of ‘ordinary residence’ in Article 24(2)(4) can only be considered in the factual context presented by the person claiming to come within the meaning of that concept.”

62.  The following sections or paragraphs of the IO are relevant to the status of permanent resident:

(a)  Paragraph 2(d) of Schedule 1, that:

“ A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region—

…

(d)  A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.”

(b)  Paragraph 1(4) of Schedule 1, that:

“ (4) For the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years—

(a) …

(b)  for a person under paragraph 2(d), before or after the establishment of the Hong Kong Special Administrative Region but immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region.”

(c)  Section 2(4)(a), that:

“ For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong—

(a)  during any period in which he remains in Hong Kong—

(i)  with or without the authority of the Director, after landing unlawfully; or

(ii) in contravention of any condition of stay”.

63.  The 7-year ordinary residence requirement has to be “immediately before” the application for a Hong Kong permanent identity card — Commissioner of Registration v Registration of Persons Tribunal [2000] 2 HKLRD 523, at 554G, and Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278, 284G-285F.

64.  On the power to deport, the following sections of the IO are relevant:

(a)  Section 20, that:

“Power to deport

(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.

…

(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.”

(b)  Section 2(1), that:

“ immigrant (入境者) means a person who is not a Hong Kong permanent resident”;

(c)  Sections 32 and 36, that:

“ 32. Detention pending removal or deportation

(3)  A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

“ 36. Recognizance as alternative to detention

(1)  An immigration officer and any police officer may require a person—

(a)  who is detained under section 27, 32, 34 or 37ZK; or

(b)  who, being liable to be detained under any of those sections, is not for the time being so detained,

to enter into a recognizance in the prescribed form in such amount, with such number of sureties and subject to such conditions as the immigration officer or police officer may reasonably require or impose; and where a person who is so detained enters into such a recognizance he may be released.”

65.  In so far as the nature of a deportation order is concerned, Andrew Cheung J (as the Chief Justice then was) in James Steven Pollard v Permanent Secretary for Security, unrep, HCAL 92/2010, 11 March 2011 explained at §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.”

Discussion

66.  The Applicant entered Hong Kong on 9 March 1998 on the strength of Passport 1.

67.  He was an “immigrant” as defined by the IO.

68.  He was in April 2000 convicted of “breach of condition of stay” and “theft”.

69.  Upon the Applicant’s conviction, the power delegated upon the PS for S to issue a deportation order was triggered.

70.  On 30 May 2000, the Deportation Order was issued (under the Applicant’s then name).

71.  Under section 20(5) of the IO, the Secretary for Security[27] has the power to, by the Deportation Order, prohibit the Applicant “from being in Hong Kong at any time thereafter or during such period as may be specified in the order”.

72.  The Deportation Order in fact specifically prohibits the Applicant “from being in Hong Kong at any time thereafter”.

73.  The validity of the Deportation Order is not being, and has never been, challenged. 

74.  The Applicant was actually deported on 8 June 2000.

75.  The Applicant came back to Hong Kong on 8 October 2001 on the strength of Passport 2.  Both the passport number and the Applicant’s name thereon were different from those of and on Passport 1.

76.  At that time, the Deportation Order was in force.

77.  Hence, when the Applicant landed in Hong Kong on 8 October 2001, he clearly did so illegally in breach of the Deportation Order.

78.  In any event, under section 20(7) of the IO, the Deportation Order while in force invalidated any permission or authority to land or remain in Hong Kong that might have been given to the Applicant when he landed in Hong Kong on 8 October 2001.

79.  Section 2(4)(a)(i) of the IO disqualifies a person having landed in Hong Kong unlawfully from being treated as ordinarily resident in Hong Kong. 

80.  He was subsequently again imprisonment upon conviction of other offences. 

81.  At the time when he was released from prison, the Deportation Order was still in force.  He was hence detained.  The PS for S has under section 32(3) of the IO the authority to detain a person subject to a deportation order pending removal.

82.  During the Detention Period, both section 20(7) of the IO and the disqualification under section 2(4)(a)(i) still applied.

83.  The Applicant was then lawfully released on his recognizance pursuant to section 36 of the IO.

84.  During the Waiting Period, similar to the position during the Detention Period, both section 20(7) of the IO and the disqualification under section 2(4)(a)(i) still applied.

85.  In respect of the Applicant’s reliance upon the 5/7/2010 DI Memo and the alleged delay in reaching the decision to suspend the Deportation Order, the evidence does not show any delay or misuse of power as alleged.  As set out above, multiple steps had been taken after the 5/7/2010 DI Memo before the decision to suspend was made.  In particular, it was only on 27 January 2012 when the Applicant withdrew his Torture Claim.

86.  The Deportation Order was first suspended on 23 February 2012.  The last date of the suspension was 22 February 2018.

87.  In respect of the 2015 VEPIC Application, the Commissioner’s 16/11/17 Decision and the Tribunal Determination:

(a)  The 7-year ordinary residence “immediately before” that application is from 7 February 2008 to 7 February 2015[28];

(b)  To be successful, the Applicant would need to show that both the Detention Period and the Waiting Period should have been counted towards his ordinary residence (so that they, together with part of the Suspension Period, made up the 7-year period);

(c)  In my view, given the analysis above in the light of the combined effects of relevant provisions in the IO as discussed, I find the Applicant’s case not reasonably arguable;

(d)  I have separately considered whether the Applicant’s application to the Commissioner on 16 November 2017 might entitle him to try to establish the 7-year period between 16 November 2010 and 16 November 2017:

(i)  The Applicant would need part of the Waiting Period;

(ii)  He would run into the same difficulties;

(iii)  His reliance upon the 5/7/2010 DI Memo could not assist him:

(1)  I repeat my view about the lack of evidence of any delay;

(2)  More important, the effect of section 2(4)(a)(i) of the IO in my view is clear, that until the suspension of the Deportation Order, the disqualification remained applicable;

(3)  In any event, as Ms Tam has submitted, which I accept, even if there had been any delay, the 5/7/2010 DI Memo being an internal memorandum, no legitimate expectation could have been created.  There is simply no legal basis to suggest that the date of 5 July 2010 should be taken as the date when the Deportation Order was suspended.  I do not find that stance reasonably arguable;

(e)  On humanitarian considerations:

(i)  I have considered the cases cited to me by Ms Tam, which include:

(1)  Sabir Mohammed v Permanent Secretary for Security, unrep, HCAL 114/2015, 27 January 2017, per Au J (as he then was), and in particular §§50, 51, and 60 thereof;

(2)  James Steven Pollard v Permanent Secretary for Security, unrep, HCAL 92/2010, 11 March 2011, per Andrew Cheung J (as the Chief Justice then was) at §57, that:

“ 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.”

(3)  Ma v Director of Immigration [2011] 2 HKLRD F6, per Andrew Cheung J (as the Chief Justice then was) at §97, that:

“ The legislative (and indeed constitutional) intent and purpose is plain to see. As the courts, including this Court, have noted on various occasions, in the light of Hong Kong’s small geographical size, huge population, substantial daily intake of immigrants from the Mainland, and relatively high per capita income and living standards, and given Hong Kong’s local living and job market conditions, almost inevitably Hong Kong has to adopt very restrictive and tough immigration policies and practices. The courts recognise that the legislature has chosen to entrust the high responsibility for and wide discretions on immigration matters to the Director. It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are indeed wide. And it is not at all surprising that the Director has consistently devised and implemented very restrictive and stringent immigration policies. The courts have said repeatedly that they will not lightly interfere with the Director’s policies or exercise of discretion, even though many of the cases involved, or potentially involved, family reunion, detention/freedom of the person, or other important subject matters. This approach represents not only a specific application of the general principle of public law that a court in its conventional public law jurisdiction only exercises a supervisory jurisdiction, and it does not sit as an appellate court from the decision of the decision-maker. But it also represents an acknowledgment on the part of the courts that the legislature, in its wisdom, has entrusted the Director with the unenviable task of manning Hong Kong’s immigration controls.”

(4)  On the facts of the case as I have set out above, I am of the view that any ground on the basis of Wednesbury unreasonableness is not reasonably arguable.

88.  In respect of Decision 2:

(a)  The relevant 7-year ordinary residence is from 22 February 2012 to 22 February 2019;

(b)  But the Deportation Order was as from 23 February 2018 no longer suspended;

(c)  The decision not to suspend the Deportation Order is not the subject matter of these proceedings[29];

(d)  I accept Ms Tam’s submission that the 7-year period was therefore broken as from 22 February 2018;

(e)  I am of the view that the contrary is not reasonably arguable.  This is particularly so in the absence of any challenge against the decision not to suspend the Deportation Order;

(f)  As to the ground that the relevant matters were under “re-consideration”, I in the course of the hearing requested the Applicant to point the Court to any evidence in that regard.  The Applicant then submitted to me a letter of 25 May 2020 from the Secretary for Security acknowledging receipt of his lawyer’s letter of 22 May 2020, and that “The matter raised in your letters is receiving attention.  A substantive reply will be provided to you in due course”. It has no relevance on the issue;

(g)  I accept Ms Tam’s submission that the ground is in any event academic. There is nothing which suggests that the Director would have decided any differently even if it had waited.

89.  In respect of Decision 3, whether on the proposed ground that the matters in respect of the Deportation Order was under re-consideration, or on the proposed humanitarian ground, they are for the reasons set out above similarly not reasonably arguable.

Conclusion

90.  For the reasons set out above, I conclude that none of the proposed grounds which the Applicant intends to rely upon are reasonably arguable.

91.  I refuse leave in respect of all three applications.

92.  On the facts of this case, and given the history involved, the assistance given by Ms Tam to this Court is valuable.  The Applicant acts in person.  The assistance which Ms Tam has provided to this Court on the law is also helpful.  In the circumstances, I am inclined not to make any costs order.  I make a costs order nisi that there be no order as to costs.