RIAZ HUSSAIN AND ANOTHER v. PERMANENT SECRETARY FOR SECURITY

HCAL 62/2020

[2020] HKCFI 2532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 62 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision of the Permanent Secretary for Security (“the Permanent Secretary”) dated 18 December 2019 refusing the 1^st Applicant’s request for a suspension or rescission of a deportation order made against him on 10 January 2017.

BASIC FACTS

2.  The 1^st Applicant is a Pakistani national born in Pakistan on 24 July 1981.  The 2^nd Applicant is a Hong Kong permanent resident.

3.  The 1^st Applicant came to Hong Kong as an illegal immigrant in 2006, and was arrested by the Police for illegally remaining in Hong Kong in September 2008.  He lodged a torture claim in the same month.

4.  On 14 March 2014, the 1^st and 2^nd Applicants married in Hong Kong.  On 22 March 2014, the 1^st Applicant applied for a dependant visa with the 2^nd Applicant as his sponsor.

5.  On 10 August 2015, the Director of Immigration (“the Director”) granted the 1^st Applicant a dependant visa to join the 2^nd Applicant as her dependant.  On the same day, the 1^st Applicant withdrew his torture claim.

6.  On 27 August 2015, the 1^st Applicant departed from Hong Kong to Pakistan voluntarily.  On 27 October 2015, the 1^st Applicant returned to Hong Kong on the strength of his Pakistani passport and the dependant visa.

7.  On 2 May 2016, the 1^st Applicant pleaded guilty to, and was convicted of, two counts of “indecent assault”, contrary to s 122(1) of the Crimes Ordinance, Cap 200.  According to the Brief Facts of the Case, the circumstances of the offences were as follows -

(1)  On 20 April 2016, Victim 1, a male, was walking on Tung Chung Waterfront Road, Lantau Island, when he was approached by the 1^st Applicant, who asked him for directions to the Tung Chung MTR Station.  Victim 1 and the 1^st Applicant walked together in the direction of Tung Chung MTR Station.  The 1^st Applicant used a mobile phone to take a picture of Victim 1, and suddenly kissed the right cheek of Victim 1 once.  Victim 1 attempted to leave, but the 1^st Applicant hugged him and rubbed his private parts against the private parts of Victim 1, and used his left hand to touch the private parts of Victim 1.  The 1^st Applicant then fled away.  Victim 1 made a report to the Police.

(2)  On 26 April 2016, Victim 2, a male, was walking on a cycling path near Shun Tung Road, Tung Chung Crescent, Tung Chung, Lantau Island, when he was approached by the 1^st Applicant, who asked him for directions to Tung Chung Waterfront.  Victim 2 and the 1^st Applicant walked together to the waterfront and sat down and began to chat.  The 1^st Applicant hugged and kissed the left cheek of Victim 2 twice, and touched the private parts of Victim 2 with his left hand.  The 1^st Applicant then asked Victim 2 to perform oral sex for him.  Feeling afraid, Victim 2 performed oral sex for the 1^st Applicant for around 10 seconds, before the 1^st Applicant pulled up his trousers and fled.  The incident was also reported to the Police.

(3)  On 29 April 2016, a police officer on plainclothes patrol on Shun Tung Road, Tung Chung was approached by the 1^st Applicant, who asked him for directions to Tung Chung Waterfront.  The police officer suspected the 1^st Applicant to be the person involved in the aforesaid incidents and declared his police identity, and arrested the 1^st Applicant.  Under caution, the 1^st Applicant denied the aforesaid offences.

(4)  On 1 May 2016, Victim 2 identified the 1^st Applicant as the person involved in the incident on 26 April 2016 in an ID Parade.

8.  On 16 May 2016, the 1^st Applicant was sentenced to 4 months and 6 months’ imprisonment respectively for the 2 offences (to run partly concurrently with each other), resulting in a total of 8 months’ imprisonment.  On 8 October 2016, he was discharged from prison.

9.  On 20 June 2016, while serving his prison sentence, the Immigration Department informed the 1^st Applicant of an intended deportation against him and served on him a “Notice of Consideration of Deportation”.  The 1^st Applicant objected to the intended deportation on the ground that his wife, the 2^nd Applicant, was a Hong Kong permanent resident and he wished to stay with her in Hong Kong.  On 27 June 2016 and 11 July 2016, the 1^st and 2^nd Applicants submitted further representations to the Immigration Department against the intended deportation of the 1^st Applicant.  They maintained or repeated their objections in an interview with the Immigration Department on 11 October 2016.

10.  On 27 October 2016, the 1^st Applicant successfully obtained a renewal of his dependant visa, and his stay in Hong Kong was extended to 27 October 2019.

11.  On 10 January 2017, the Permanent Secretary, acting under the delegated authority of the Chief Executive, made a deportation order for life (“the Deportation Order”) against the 1^st Applicant under s 20(1)(a) of the Immigration Ordinance, Cap 115 (“the Ordinance”) by reason of his aforesaid convictions.

12.  On 2 May 2017, the 1^st Applicant, through his solicitors and counsel, wrote to the Immigration Department requesting for a suspension of the Deportation Order (“the First Request”). On 7 August 2017, the Permanent Secretary refused the First Request.  This refusal is not challenged in the present application.

13.  On 6 October 2017, the 1^st Applicant, through his solicitors and counsel, made a request to the Immigration Department for a rescission of the Deportation Order (“the Second Request”). In his counsel’s letter dated 11 March 2019, she further requested the Immigration Department to suspend the Deportation Order pending the final decision on the request for its rescission.  Further representations in support of the Second Request were made by the 1^st Applicant’s solicitors on 20 August 2019.

14.  On 18 December 2019, the Permanent Secretary refused the Second Request (“the Decision”).  The Security Bureau’s deliberation of the Second Request can be found in its internal file minute (M.4), the relevant parts of which state as follows:

“Present Request for Suspension/Rescission of Deportation Order

[7] The grounds put forth by Mr Hussain’s legal representatives in the letters at Annexes A2 and B2 to (13) are, in essence, as follows -

(a) Mr Hussain was born in Pakistan. He arrived in Hong Kong in 2006 and subsequently lodged a claim under CAT which was withdrawn on 10 August 2015. He would reinstate his non-refoulement claim if the Immigration Department insisted to deport him to Pakistan;

(b) on 14 March 2014, Mr Hussain solemnized a marriage with Madam Wong in Hong Kong. His application to join Madam Wong as her dependant was approved on 6 August 2015;

(c) Mr Hussain had established his family and had strong family ties in Hong Kong. He had fully integrated into the Hong Kong society and was accepted by Madam Wong’s family;

(d) Mr Hussain had no family ties in Pakistan. His parents had passed away and he had little contact with his siblings since he had resided in Hong Kong;

(e) Mr Hussain’s convictions were not the worst compared to other cases where deportation orders were issued. He was not a danger to the Hong Kong society. A deportation order for life was disproportionate and unduly harsh;

(f) Mr Hussain was remorseful for his wrongdoings and had turned over a new leaf after serving his sentence. He had good characters as he was honest with the property of other people and had made frequent donations;

(g) since the deportation order was made against Mr Hussain, Madam Wong had been suffering from depression and was on medication. Proper medical treatments would not be available to her in Pakistan;

(h) Madam Wong was born in Hong Kong. She was a senior shipping officer with a monthly income of about HKD20,000. It was not a viable alternative for her to join Mr Hussain in Pakistan due to cultural difference; and

(i) Mr Hussain was a rigger with monthly income of about HK$22,000 before a deportation order was made against him. He had undergone training and obtained various qualifications and certificates related to his work. He was a taxpayer and had contributed to the Hong Kong society. There was no employment prospect for him in Pakistan as he did not receive any formal education there. He would not be able to support his family.

[8] ln support of the request, the legal representatives submitted the representations dated 9 March 2019 from Madam Wong’s father and sister. Their grounds put forth were, in essence, as follows (Annexes B6 and B7) -

(a) Mr Hussain had good characters. He took good care of Madam Wong and maintained a harmonious relationship with the family;

(b) to support his family, Mr Hussain attended different courses to obtain qualifications in order to increase his income;

(c) Mr Hussain had served the sentence for the mistake he made. Since his discharge from prison, Mr Hussain had not committed any other offence. He was remorseful for his wrongdoing and regretted bringing financial and mental burden to Madam Wong due to his imprisonment;

(d) Madam Wong was mentally tormented by Mr Hussain’s imprisonment and deportation. She required consultation with psychologist;

(e) they did not want Madam Wong to follow Mr Hussain to Pakistan as a result of his deportation; knowing that Pakistan was a dangerous country; and

(f) they pleaded that the deportation order made against Mr Hussain be suspended for Mr Hussain’s rehabilitation and their family reunion.

[9] SWWA also provided a letter of August 2019 from Madam Wong submitting, in essence, that (Annex C2) -

(a) she solemnized a marriage with Mr Hussain for seven years and had become closer as time went by;

(b) although she was the breadwinner, they never had argument on the family finance but were considerate to each other;

(c) despite his low education level, Mr Hussain did not stop self-learning and had participated in voluntary work. He also helped others by being a regular blood donor;

(d) she was born in Hong Kong and knew that Pakistan was a dangerous country; and

(e) she pleaded for a chance to Mr Hussain and her and vouched that Mr Hussain would contribute to the Hong Kong society.

[10] To support the request, the legal representatives provided, among others, copies the following of documents -

(a) photos of Mr Hussain and Madam Wong taken with family and friends;

(b) Madam Wong’s medical report dated 17 May 2017 stating that she was suffered from severe depressive episodes with severe anxiety episodes;

(f) Mr Hussain’s previous employment proof;

(g) Mr Hussain’s training and worker certificates;

(h) Madam Wong’s tax return and voucher;

(i) found property receipts issued by the Police;

(j) Mr Hussain’s donation receipt;

(k) supporting letters from Chairman of Pakistan Islamic Welfare Union Inc. (H.K.) Ltd. and Mr Hussain’s friend; and

(l) Mr Hussain’s blood donation records.

Comments from Director of Immigration

[12] The Director of Immigration (‘the Director’) is of the view that the making of deportation order against Mr Hussain was the consequence of his criminal conviction of serious offence in Hong Kong and such a decision was made after careful consideration of all the circumstances of his case. Being a subject of deportation order, Mr Hussain should not have any expectation that the prohibition of his stay in Hong Kong can be lifted easily to enable him to lead a normal family life in Hong Kong.

[13] Mr Hussain’s family ties in Hong Kong had already been considered when making the recommendation for Mr Hussain’s deportation in December 2016. The circumstances that the deportation order made against Mr Hussain may deprive Mr Hussain of his proximity to Madam Wong in Hong Kong have also been taken into consideration. The Director is of the view that Madam Wong is free to travel to any place outside Hong Kong to reunite with Mr Hussain if she wishes to do so.

[15] After considering all circumstances of the case, the Director cannot find any extenuating factor or overwhelming compassionate grounds which may justify the suspension/rescission of the deportation order. The Director therefore recommends that the request for suspension/rescission of the deportation order in respect of Mr Hussain be rejected.

Decision Sought

[17] The deportation of Mr Hussain was the consequence of his criminal conviction in Hong Kong. Given the seriousness of Mr Hussain’s criminal offence, it will not be in the public interest to allow him to remain in or come to Hong Kong again.

[18] According to the prevailing jurisprudence, family rights are not absolute in the context of immigration cases. Mr Hussain, not being a HKPR or a person with the right to enter or remain in Hong Kong, cannot rely on the claim of family right by his family member or himself to justify a request for suspension/rescission of the deportation order. Hence, Mr Hussain should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong.

[19] Deportation is not a sentence or punishment to fit the crime. It is triggered because the territory has decided that it no longer welcomes that particular person, wants him to leave, and does not want him to come back again. When the deportation order was made against Mr Hussain on 10 January 2017, his presence in Hong Kong is no longer welcome. There is no basis for Mr Hussain to contend that because his conviction was not the most serious of crime or that he had served the sentence, consideration should be given to suspend or rescind the deportation order.

[20] While the deportation of Mr Hussain for life may deprive him of his proximity to his wife in Hong Kong, Madam Wong has the freedom to visit or reunite with him elsewhere other than in Hong Kong if she wishes to do so. It remains a matter of choice. On the other hand, being an able-bodied adult of Pakistani origin, Mr Hussain should not have undue hardship to re-establish himself in his home country. As for the health condition of Madam Wong, the deportation of Mr Hussain does not prohibit her from receiving medical consultations or treatments in Hong Kong or other places, where she finds suitable.

[21] There is no circumstantial change since the making of the deportation order against Mr Hussain. Having considered all circumstances of the case, and having balanced the potential hardship that may cause to Mr Hussain and his family on one hand and the threat of his continuous presence in Hong Kong on the other, we consider that the present request does not sufficiently justify suspension or rescission of the deportation order against Mr Hussain. It is recommended that the request for suspension/rescission of the deportation order made against Mr Hussain be rejected.”

15.  In the Permanent Secretary’s letter to the Applicant’s counsel dated 18 December 2019, the following is stated:

“Your request has been carefully considered by the Permanent Secretary. Having taken into account all the circumstances of the case, the Permanent Secretary has not found sufficient justification for suspending or rescinding the deportation order made against Mr Hussain. Thus, the decision to deport Mr Hussain from Hong Kong for life still stands.”

APPLICATION FOR JUDICIAL REVIEW

16.  On 7 January 2020, the Applicants made the present application for leave to apply for judicial review of the Decision.  In the Form 86, the Applicants seek the following relief: (i) suspension or rescission of the Deportation Order, and (ii) quashing of the Deportation Order, but did not state any ground in support of the application.  It would, however, appear from the 1^st Applicant’s affirmation filed on 7 January 2020 that the following grounds were relied upon in support of the application:

(1)  the Permanent Secretary’s delay of 2 years and 2 months in making the Decision; and

(2)  the Permanent Secretary’s failure to give reasons for refusing the Second Request, or upholding the Deportation Order.

17.  On 23 August 2020, the Applicants issued a Notice of Motion to apply for leave to amend the Form 86.  Two grounds of judicial review are raised in the draft Amended Form 86, at §28:

(1)  Ground 1 -

“Failing to take into account relevant considerations, namely -

(a) The [Permanent Secretary] did not consider whether the offences for which the 1^st Applicant was convicted were the most serious so as to justify [the refusal of] suspension/rescission [of the Deportation Order];

(b) The [Permanent Secretary] failed to take into account whether the 1^st Applicant had been rehabilitated when he was released from prison as his dependent visa was not cancelled, and he successfully applied for a visa renewal of 3 years.”

(2)  Ground 2 -

“In failing to take into account 1(a) and (b), the [Permanent Secretary] was unable to properly assess whether a rejection of suspension/rescission was necessary as conducive to the public good.”

18.  At §27 of the draft Amended Form 86, the Applicants state that they will abandon the grounds of (i) undue delay, and (ii) failure to give reasons previously raised in support of the leave application.

DISCUSSION

(i)     Ground 1

19.  Under Ground 1 of judicial review, Mr Ross argues that the Permanent Secretary failed to take into consideration the following matters in making the Decision:

(1)  whether the offences for which the 1^st Applicant was convicted were of the most serious nature; and

(2)  whether the 1^st Applicant had been rehabilitated when he was released from prison, having regard to the fact that his dependant visa was not cancelled and he successfully applied for a visa renewal for 3 years on 27 October 2016.

20.  The first question which arises for consideration is whether the Permanent Secretary was under any legal duty to take into consideration these matters when deciding whether to suspend or rescind the Deportation Order.

21.  As a matter of principle, “in proceedings for judicial review, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker has failed to take into account a consideration which he is bound to take into account in making that decision”: see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at 339A-B per Litton PJ.  In this regard, it is important to distinguish between three different categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had, (ii) those clearly identified by the relevant legislation as considerations to which regard must not be had, and (iii) those to which the decision-maker may have regard if, in its judgment and discretion, it thinks it right to do so: see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439 per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037.  In relation to the third category of consideration, what is and what is not a relevant consideration for a decision-maker to have in mind is, absent a statutory code of compulsory considerations, for the decision-maker, not the court, to decide: R (AL Rawl) v Foreign Secretary [2008] QB 289, at paragraph 131 per Laws JA.

22.  In the present case, the Deportation Order was made pursuant to s 20(1)(a) of the Ordinance.  Section 20(1) of the Ordinance states as follows:

“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 Governor deems it to be conducive to the public good.”

23.  It can be seen immediately that, unlike sub-paragraph (b) which requires the Chief Executive (or her delegate) to consider the element of “public good”, the criterion for making a deportation order under sub-paragraph (a) is that the immigrant has been found guilty in Hong Kong of an offence punishment with imprisonment for not less than 2 years.  For the purpose of sub-paragraph (a), the legislature has defined and identified what sort of criminal conduct is, by itself, sufficiently serious to justify the making of a deportation order against an immigrant (see Weerachon Sae-Ieo v Secretary for Security [2003] 2 HKLRD 519, at §59 per Hartmann J (as he then was); Sabir Mohammed v Permanent Secretary for Security, HCAL 114/2015 (27 January 2017), at §37 per Au J (as he then was)).

24.  This does not mean that the Permanent Secretary (as the Chief Executive’s delegate) is not allowed to take into account the element of “public good” when exercising the power to make a deportation order under s 20(1)(a).  As observed by Hartmann J in Weerachon Sae-Ieo, ante, at §60, the question that may be asked is: do Hong Kong’s best interests justify an order for deportation, or, are there grounds in public good to justify such an order.

25.  However, since there is not provided in the Ordinance a list of mandatory considerations which the Permanent Secretary must take into account in the exercise of his powers to make a deportation order under s 20(1)(a) in any given case, he is not under any legal duty to take into account any specific factors.  The Permanent Secretary is given a broad discretion under s 20(1)(a), the exercise of which must, ultimately, be guided by considerations of public policy (see Sabir Mohammed, ante, at §39).

26.  After a deportation order has been made, the Chief Executive (or her delegate) is also given powers under ss 54 and 55 of the Ordinance to suspend or rescind the order.

27.  Section 54(1), so far as relevant, states as follows:

“The [Chief Executive] may suspend the deportation order made against any person on such conditions as he thinks fit, and during the continuance of the suspension the deportation order shall not be in force.”

28.  Section 55(1) states as follows:

“The Governor may rescind the deportation order made against any person, but the rescission of the deportation order shall not affect the power of the Governor to make another such order against that person.”

29.  Again, the Ordinance does not provide a list of mandatory considerations which the Permanent Secretary must take into account in the exercise of his delegated powers to suspend or rescind a deportation order under ss 54 and 55 in any given case.  The above discussion relating to the considerations which the Permanent Secretary is required to take into account in the exercise of his powers to make a deportation order under s 20(1)(a) is equally relevant to the exercise of his powers to suspend or rescind a deportation order under ss 54 and 55.

30.  There is, in my view, no support for Mr Ross’ argument that the Permanent Secretary was required to take into consideration the matters referred to in §19 above.  In any event:

(1)  It is clear from the minute (M.4) that the Permanent Secretary was aware of the Applicant’s contention that his “convictions were not the worst compared to other cases where deportation orders were issued” (§7(e)), but took the view that “[g]iven the seriousness of Mr Hussain’s criminal offence, it will not be in the public interest to allow him to remain in or come to Hong Kong again” (§17).  The Permanent Secretary was entitled, having regard to (a) the circumstances of the offences mentioned in §7 above; and (b) the prison sentences imposed on the 1^st Applicant for the 2 offences, to come to the view that the 1^st Applicant’s offences were of such seriousness that it would not be in the public interest to allow him to remain or come to Hong Kong again.  That the 1^st Applicant’s offences are not the “worst” compared to other cases where deportation orders are made (in other words, there are worse cases) is not a ground to justify a suspension or rescission of the Deportation Order.

(2)  The Permanent Secretary was also aware of the Applicant’s contention that he “was remorseful for his wrongdoings and had turned over a new leaf after serving his sentence” (§7(f) of M.4).  It was for the Permanent Secretary to decide whether to take this factor into account and the weight that may be given to this factor (if he decides to take it into account) when deciding whether to suspend or rescind the Deportation Order. The fact that the Director did not cancel or revoke the 1^st Applicant’s dependant visa, or granted a renewal of 3 years of the dependant visa does not advance the Applicants’ case.  It is clear that the Director granted a renewal of the 1^st Applicant’s dependant visa because of his marriage to the 2^nd Applicant (see §4 of the Attachment to the Director’s “Application for Deportation Order” dated 19 December 2016).  When making the decision to review the 1^st Applicant’s dependant visa, the Director’s focus was not on whether a deportation order should be made against him by reason of his said convictions.  Plainly, the Director did not consider that no deportation order should be made against the 1^st Applicant on account of his said convictions (whether because the offences were not serious, or the 1^st Applicant had sufficiently rehabilitated himself, or otherwise), because it was the Director who applied to the Secretary for Security for a deportation order to be made against the 1^st Applicant in the first place.  In refusing to suspend or rescind the Deportation Order, the Permanent Secretary was exercising a different discretion from that exercised by the Director in granting a renewal of the dependant visa.  In any event, the Permanent Secretary was not bound by whatever views that the Director might have reached on the seriousness, or consequence, of the 1^st Applicant’s said convictions.

31.  In all, Ground 1 of judicial review is rejected.

GROUND 2: PERMANENT SECRETARY WAS UNABLE TO PROPERLY ASSESS THE ELEMENT OF PUBLIC GOOD

32.  This ground stands or falls together with Ground 1.  Having rejected Ground 1, it follows that Ground 2 must also be rejected.

33.  In passing, I should mention that in the draft Amended Form 86, at §40, it is argued that a ground of review “may be” a failure to assess the proportionality of a decision, and reliance is placed upon the judgment of the UK Supreme Court in Pharm v Secretary of State for the Home Department [2015] 1 WLR 1591 in support of this proposition.  In Hong Kong, it is well-established that proportionality is relevant when considering whether a restriction of, or interference with, fundamental rights protected by the Basic Law or the Hong Kong Bill of Rights can be justified. This is not the occasion to consider in depth the question of whether a doctrine of “proportionality”, as distinct from “reasonableness” in the Wednesbury sense, can or should be developed to apply to other cases outside the context of restriction of or interference with fundamental rights because, in the context of immigration decisions concerning persons who have no right to enter and remain in Hong Kong, such a development would be inconsistent with (i) the well-established strict immigration policy in Hong Kong which has been upheld by the courts on many occasions, and (ii) the Immigration Reservation to the ICCPR/Section 11 of the Hong Kong Bill of Rights Ordinance.  On the basis of the existing jurisprudence in Hong Kong, I do not consider that it is open to the Applicants to challenge the Decision based on a principle of proportionality.

34.  In all, the intended application for judicial review is not reasonably arguable and has no realistic prospect of success.

DISPOSITION

35.  The application to amend the Form 86 and the application for leave to apply for judicial review are dismissed.

36.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled.  The general rule is that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent unless there are special or exceptional circumstances which justify such an order being made (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, paragraphs 11 to 14 and 17).  I do not consider that there are sufficiently special or exceptional circumstances in the present case to justify a departure from the general rule.  The application to amend the Form 86 should be regarded as part and parcel of the application for leave to apply for judicial review. In all, I make no order as to costs in relation to the applications before me.