KAMRAN JAVID v. PERMANENT SECRETARY FOR SECURITY

HCAL 592/2023

[2023] HKCFI 1944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 592 OF 2023

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J U D G M E N T

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A.  Introduction

1.  This is certainly not the first time the Applicant has made an application to the Court in relation to decisions following the making of a deportation order against him on 30 May 2000 (“Deportation Order”), being a deportation order for life made against him pursuant to section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”).

2.  In the present application, the Applicant seeks to challenge two decisions (together “Decisions”) of the Permanent Secretary for Security (“PS for S”), being:

(1)  the decision dated 20 January 2023, refusing the Applicant’s request to re-suspend and rescind the Deportation Order (“1^st Decision”); and

(2)  the decision dated 27 March 2023 refusing the Applicant’s request to shorten the Deportation Order (“2^nd Decision”).

3.  I gave directions for a rolled-up hearing, which was heard on 20 July 2023. At the hearing, Mr Timothy Parker and Ms Samantha Lau appeared as Counsel for the Applicant; and Ms Leona Cheung, Principal Government Counsel, and Mr Felix Lee, acting Senior Government Counsel, appeared for the PS for S.

4.  At the end of the hearing, I reserved my decision.

5.  This is my Judgment.

B.  Background

6.  The Case comes about against the following factual background.

7.  On 9 March 1998, the Applicant arrived in Hong Kong as a visitor under the identity of Ahmed Kamran.  He overstayed beyond the expiry of his permission to remain as a visitor.  On 5 April 2000, he was convicted of the offences of “breach of condition of stay” and “theft”.  He was sentenced to a total of four months’ imprisonment.

8.  On 30 May 2000, the Secretary for Security made the Deportation Order.  The Applicant was deported to Pakistan on 8 June 2000.

9.  On 24 September 2001, the Applicant married a Hong Kong resident (“Ms Mak”), in Pakistan.  The Applicant and Ms Mak have since had three children together, born on 10 October 2009, 3 November 2011 and 3 June 2013 respectively.

10.  On 8 October 2001, the Applicant re-entered Hong Kong under his current name Kamran Javid, again as a visitor.  Entering Hong Kong was in breach of the Deportation Order.  The breach was presumably not immediately detected because of the change of name.

11.  Based on his marriage to Ms Mak, the Applicant applied for extension of stay and change of his immigration status from that of visitor to that of Ms Mak’s dependant.  On 18 April 2002, the Applicant was granted a dependant visa and permission to remain on that basis was later extended until 18 April 2006.

12.  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 of a further two 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 subsequently reduced on appeal to a total of a total of 6 years and 4 months’ imprisonment, to commence after he had served 15 months of the sentence earlier imposed.

13.  On 8 August 2006, the Applicant received 6 months of remission of sentence for assisting the police and testifying in court.

14.  On 6 February 2008, the Applicant was discharged from prison and placed in immigration detention.  On 13 November 2008, he was released on recognizance.

15.  From 2004, the Applicant and Ms Mak repeatedly requested the Director of Immigration (“Director”), the PS for S, and the Chief Executive to rescind or to suspend the Deportation Order, and for the Applicant to be allowed to stay in Hong Kong.

16.  Between 2012 and 2018, the PS for S agreed to suspend – but refused to rescind – the Deportation Order.  He did so one year at a time upon the Applicant’s yearly request.  The last suspension was granted on 23 February 2017. The suspensions were granted on consistent reasoning which included that: (1) the Applicant has a strong family connection in Hong Kong, being married to Ms Mak in a close relationship; (2) the Applicant has young children with Ms Mak, and the children have been living with the Applicant since birth; (3) it would be in the children’s best interest if the Applicant could provide them with continued paternal care; and (4) since being granted permission to stay as Ms Mak’s dependant, the Applicant has stayed with his family as a law-abiding citizen.

17.  However, on 3 June 2016, the Applicant solemnised another marriage in Pakistan with a Ms Sajid.  Notwithstanding that marriage, the Applicant’s marriage with Ms Mak was, and still is, subsisting.  The Applicant and Ms Sajid had a child born in the Philippines in January 2017.

18.  The Applicant had not informed the PS for S of his second marriage at the time of the request for further suspension of the Deportation Order in 2017.

19.  On 16 January 2018, the Applicant made his request for a further suspension (and to rescind) the Deportation Order, and informed the Director and the PS for S of the second marriage in June 2016 and the birth of the child in January 2017.  The PS for S also learned from the Director that the Applicant had been staying outside Hong Kong for longer periods in the preceding two years (14 trips in two years, with 194 days outside Hong Kong away from his Hong Kong family).

20.  The Director recommended to reject the further request for suspension/rescission of the Deportation Order, taking into account (amongst other things) the Applicant’s “current polygamous family situation” and that the Applicant could no longer “extend his full care and support to [Ms Mak] and the three children”.

21.  In the internal minutes of the Security Bureau dated 14 March 2018, the second marriage in June 2016 and birth of the child in January 2017 was regarded as a “recent major circumstantial change”.  In recommending that further suspension of the Deportation Order should not be given, the minutes recorded that:

[The Deportation Order] was first suspended in 2012 on compassionate grounds to facilitate his provision of paternal care to his tender aged children in Hong Kong.  Without any circumstantial change, [the Deportation Order] had been suspended for six times with a total of six consecutive years.  However, in the present request, a recent major circumstantial change was brought to our attention, that is, [the Applicant] solemnised his second marriage … and a daughter was born between them during his second last suspension period.  We also noted from the Director’s information that [the Applicant’s] length of stay outside Hong Kong in the recent two years was comparatively longer than the previous years.

22.  On 28 March 2018, the PS for S rejected the Applicant’s request for rescission or suspension of the Deportation Order.  Between February 2019 and May 2020, the Applicant repeated his request for rescission or further suspension of the Deportation Order, which was refused on 3 August 2020.

23.  On 23 October 2020, the Applicant applied for leave to apply for judicial review against the decision dated 3 August 2020.  On 23 March 2021, K Yeung J dismissed the application: see [2021] HKCFI 748.  On 6 January 2023, the Court of Appeal refused the Applicant’s appeal against K Yeung’s decision: see [2023] HKCA 30.

24.  On 2 July 2021, the Applicant and Ms Sajid divorced, and a Divorce Registration Certificate issued by the Pakistani authorities on 24 January 2022 certifies the dissolution of the second marriage (“Divorce”).

25.  Following that change of circumstances, the Applicant applied to have the PS for S re-suspend or alternatively rescind the Deportation Order.  The Applicant submitted that his personal circumstances were the same as (if not more compelling than) they had been during the prior suspension period between 2012 and 2018.  In his solicitors’ letter dated 11 February 2022 making the application for suspension or rescission, it was stated that:

(1)  Since the earlier requests made in 2021, the Applicant had divorced Ms Sajid on 2 July 2021.

(2)  The Hong Kong Police had expressed gratitude to the Applicant for his assistance in police anti-narcotics operations and stated that (a) his character working with the police was very positive, and (b) his continuous support is needed to continue tackling crime within society and that he would make further positive contributions to society should he remain in Hong Kong.  Therefore, it is clear that the Applicant’s residence or presence in Hong Kong is welcomed by the Hong Kong police.

(3)  Given the Divorce, the very basis for the PS for S’s refusal decision in March 2018 no longer exists.

(4)  On the other hand, the Applicant has been living with his family members in Hong Kong for a further significant period of time, as a result of which the family bonds have become much tighter.

(5)  Ms Mak and all three children are Hong Kong permanent residents, and the children have all along been living and studying in Hong Kong.

(6)  The children do not know the Pakistani language, and it is clearly unreasonable to ask them to relocate to Pakistan, or to travel Pakistan frequently to see their father, given that the Deportation Order is for life.

(7)  As the very basis for the prior refusal to suspend no longer exists, expedition is requested to rescind or suspend the Deportation Order, so that the Applicant’s normal life (and the life of his family members) can be restored as soon as possible.

26.  In passing, it can also be noted that the Applicant had also previously made a torture claim with the Director on 22 October 2007, while he was on remand. He later withdrew that claim on 27 February 2012.

27.  It can also be noted that the Applicant submitted three applications for verification of eligibility for permanent identity card (“VEPIC”).  The first VEPIC application was made in February 2015 and rejected in May 2015.  The Applicant applied on 16 November 2017 to the Commissioner of Registration for a Hong Kong permanent identity card but it was refused on the same day.  The Applicant’s appeal to the Registration of Persons Tribunal was dismissed on 15 April 2019.  Shortly before that, the Applicant had made a second VEPIC application in February 2019, which was rejected on 18 March 2019.  The Applicant submitted a third VEPIC application in April 2021, and it was rejected on 13 July 2021.

28.  The Applicant commenced three sets of legal proceedings seeking leave to apply for judicial review to challenge the refusal of his first and second VEPIC applications and the refusal to provide him with a permanent identity card.  The three cases were heard together and the Court of First Instance refused leave in respect of all three applications on 23 March 2021.  The Applicant’s attempt to take matters further to the Court of Appeal (“CA”) was dismissed by the CA on 8 December 2021, and the CA also dismissed the Applicant’s application to go to the Court of Final Appeal (“CFA”) on 19 January 2022.  A further application was made to the CFA on 27 January 2022 (which I assume has by now been determined).

C.  The Decisions

29.  By a memorandum dated 13 June 2022, the Director considered what recommendation to make to the Secretary for Security as regards the Applicant’s request for suspension/rescission of the Deportation Order.  Having set out the background – including (1) summaries of the correspondence from 7 April 2021 until the Applicant’s solicitors letter dated 11 February 2022, (2) the Applicant’s family background, (3) the VEPIC applications and legal proceedings – the Director noted that the Commissioner of Police had expressed the view that there were no grounds to support the request for suspension or rescission of the Deportation Order.  The Director then identified that:

(1)  The Deportation Order had been made on the basis of the Applicant’s criminal convictions of serious offences in Hong Kong, when he was a returned deportee.

(2)  Being the subject of the Deportation Order, the Applicant should not have any expectation that the prohibition of his stay in Hong Kong would be lifted to enable him to lead a normal family life in Hong Kong.

(3)  The Applicant’s Hong Kong family members are free to travel outside Hong Kong to reunite with him should they wish to do so.

(4)  The Applicant had failed to disclose the second marriage when seeking the suspension of the Deportation Order in February 2017.

(5)  Following the refusal of request for suspension in 2018 and 2020, the Applicant divorced Ms Sajid. The Director is of the view that the Applicant’s bona fides are not satisfied.

(6)  There are no extenuating grounds which may warrant the suspension or rescission of the Deportation Order.

(7)  Hence, it is recommended to reject the request.

30.  It is worth interposing at this point that the PS for S has not relied upon any doubt as to the Applicant’s bona fides as regards the Divorce, and that aspect of the Director’s views has not been taken into account by the PS for S.

31.  The Director’s comments were provided to the Applicant, and he gave his reply to them in letters dated 1 and 11 August 2022.  I do not think for present purposes I need to set out the content of that reply.

32.  The Security Bureau’s consideration of the Applicant’s request is to be found in a memorandum M.1 dated 18 January 2023.  The memorandum first sets out the background to (1) the issue of the deportation order, (2) entry to Hong Kong after deportation, (3) claim status and (4) family background.  Then it deals with the previous requests for suspension/rescission of the Deportation order and the VEPIC applications and other legal proceedings.

33.  Memorandum M.1 then sets out the grounds for the Applicant’s request because of the nature of criticism raised in these proceedings, it may be helpful to set out the relevant paragraphs of the memorandum:

19.  Between April 2023 and February 2022, Mr Javid, and their then legal representatives had provided a total of six written representations / letters requesting for suspension / rescission of the deportation order [Annex A to (33)].  The grounds put forth are, in essence, as follows –

(a)  There was a major change in circumstances since Mr Javid had divorced with his Pakistani wife, [Ms Sajid], on 31 March 2021.  The second marriage no longer existed and the circumstances were the same as the period when the deportation order was previously suspended;

(b)  Given Mr Javid had divorced with [Ms Sajid], the very basis for the then PS for S’s decision dated 22 March 2018 in refusing to further suspend the deportation order no longer existed;

(c)  Mr Javid’s only family was in Hong Kong which consisted of [Ms Mak] and three children, who are all HKPRs.  He claimed that he did not have other family outside Hong Kong;

(d)  Mr Javid had accepted Hong Kong as his home country and he had been living in Hong Kong for the last 21 years;

(e)  Mr Javid had strong family ties in Hong Kong and it was in the best interest of his children to be able to have continued parental care from him;

(f)  Mr Javid was the only breadwinner in the family and the family was suffering as Mr Javid was not working for the past four years;

(g)  Ms Mak had been living in Hong Kong for 39 years.  She need to take care of her father who was more than 80 years old.  All her siblings were also residing in Hong Kong and [Ms Mak] had her own private property in Hong Kong.  [Ms Mak] was unwilling to leave Hong Kong with their three children;

(h)  All three children were born and raised in Hong Kong and they went to school and spoke their mother tongue as Cantonese.  It was impractical for [Ms Mak] and their three children to leave or travel outside Hong Kong to visit Mr Javid given that the deportation order was for life;

(i)  Mr Javid had been running his business since 2012 for six years and he paid taxes and contributed to the economy of Hong Kong;

(j)  There was no information to Mr Javid’s detriment subsequent to his release on recognizance.  He had no risk of re-offending and posed no threat to Hong Kong;

(k)  Mr Javid had offered assistance to the Police on a number of occasions and was a confident informer of the Police.  He received commendation letters from the Police.  His residence or presence in Hong Kong was very welcome by the Police; and

(l)  Mr Javid would withdraw his pending appeal to the CA if his deportation order was suspended / rescinded and was allowed to live with his family in Hong Kong for the rest of his life.

20.  To support the request, various documents at Annex B to (33) were submitted, including

(a)  Notice Divorce dated 31 March 2021 between Mr Javid and [Ms Sajid];

(b)  Divorce Deed / Notice dated 31 March 2021 between Mr Javid and [Ms Sajid];

(c)  Divorce Registration Certificate issued on 24 January 2022 between Mr Javid and [Ms Sajid] indicating the date of effectiveness of divorce as 2 July 2021;

(d)  Notification of change of particulars of previously registered from Mr Javid dated 12 April 2021;

(e)  Extract from a newspaper about the Police’s anti-narcotics operation;

(f)  Letters dated 17 July 2019, 29 September 2020, 5 March 2021, 16 April 2021 and 13 July 2021 from the Police to Mr Javid;

(g)  Memo dated 20 November 2019 from the Police to the Immigration Department (“ImmD”) about the grounds supporting the Mr Javid’s suspension / rescission request;

(h)  Extract of a purported court judgment in relation to deportation order; and

(i)  Notice of Appeal received by the Court on 1 April 2021 in relation to the refusal decision of the then PS for S for Mr Javid’s request on his suspension / rescission of deportation order.

21.  The Director of Immigration (“the Director”) has reviewed the case and made his recommendation in the memorandum date 13 June 2022 at (33). After obtaining the said memorandum through making a data access request under the Personal Date (Privacy) Ordinance, Cap. 486, Mr Javid provided his comments on the Director’s recommendation in a letter of 1 August 2022 at (42).  The comments are, in essence, as follows –

(a)  The deportation order made against Mr Javid was suspended for six consecutive years till 22 March 2018.  His previous criminal records were filly considered by the Director and the PS for S.  Mr Javid was credited by the PS for S in their internal memo dated 21 February 2017 as a law abiding citizen;

(b)  Mr Javid previously assisted in anti-narcotics operations and the Police by letters dated 29 September 2020, 5 March 2021, 16 April 2021 and 13 July 2021 credited Mr Javid as a law abiding citizen and supported his continued presence in Hong Kong which was for the best interest of the Hong Kong local community;

(c)  The Director did not mention in his recommendation that Mr Javid posed any threat to the law and order and there was a risk of re-offending.  The Director had no good reasons to execute the deportation order after 19 years if Mr Javid’s physical presence did not pose any threat to law and order or have any risk of re-offending;

(d)  Mr Javid informed the Director about his second marriage on his own initiative instead of being found out, which showed that Mr Javid did not have the intention of cheating on this matter;

(e)  It was unfair for the Director to consider that Mr Javid’s bona fides were not satisfied.  All the divorce documents of the second marriage provided by Mr Javid were legal, authentic and could be verified by the Pakistani Consulate;

(f)  Mr Javid stayed in Hong Kong without travelling elsewhere since January 2018 and were living with his wife and their three children;

(g)  Mr Javid was living in Hong Kong since October 2001 and was now of 41 years of age.  All his savings, house, children, business and friends were in Hong Kong;

(h)  Mr Javid had separated with his second wife for more than four years and they had no further connections;

(i)  In the CFI judgment in Kamran Javid v Permanent Secretary for Security HCAL 2152/2020 dated 23 March 2021, the Court found that Security Bureau (“SB”)’s decision not to suspend the deportation order could not be said to be Wednesbury unreasonable having considered that SB’s view that Mr Javid’s second marriage was a recent major circumstantial change in which the deportation order was suspended, and there had been no circumstantial change between 2018 and 2020.  Mr Javid considered that the circumstances in 2021 has changed and the Director’s recommendation was therefore Wednesbury unreasonable;

(j)  The circumstances of Mr Javid were the same as when the deportation order was suspended in early 2012.  The Director and the PS for S should suspend / rescind the deportation order as they did previously from 2012 to 2018 on the same circumstances;

(k)  It would not be in the best interest of the Hong Kong community to deport Mr Javid since the letters from the Police recommended that he was fulfilling his responsibilities as a citizen by fighting against crime and Mr Javid shall remain in Hong Kong to make further and continuous contribution to the society; and

(l)  Mr Javid alleged that the present application was not one which the Director was not legally bound, but was a matter of unreasonableness.

22.  On 11 August 2022, Mr Javid submitted further representations to support the request at (45).  The grounds put forth by are, in essence, as follows –

(a)  Mr Javid had provided the divorce certificate of his second marriage to the Director upon request.  The Director did not conduct any online enquiry or inquire with the Pakistani Consulate or interview Mr Javid;

(b)  The Director had no solid reasons to reject his request for suspension / rescission of deportation order and the Director’s comments were based on his speculations; and

(c)  The Director failed to act fairly in processing the present request and “made wrong approach to say that my bona fides cannot satisfy him or its not genuine” [sic].

34.  Memorandum M.1 then sets out the comments from the Commissioner of Police and the Director, as well is from the Department of Justice (although the latter comments have been redacted in the copies provided).  There is then a section headed ‘Decision sought’ – the part of M.1 which Mr Parker has described as the “operative” or “analytical” part of the memorandum – which reads as follows (bold in original):

30.  The deportation of Mr Javid was the consequence of his criminal convictions in Hong Kong.  In the absence of any overwhelming factors, there is no extenuating grounds that may warrant suspension / rescission of the deportation order at this juncture.

31.  According to the current jurisprudence regarding immigration control, family rights are not absolute in the context of immigration cases.  Mr Javid, not being a HKPR or a person with the right to enter or remain in Hong Kong after making of the deportation order, cannot rely on the claim of family right by his family members or himself to justify a request for suspension / rescission of the deportation order.

32.  Although the deportation against Mr Javid had been previously suspended by the then PS for S for a few times, there was no indication that the deportation order would be further suspended upon fresh applications for suspension / rescission were received.  Mr Javid should not have any expectation that the deportation order would be suspended again and the prohibition of his stay in Hong Kong would be lifted easily.

33.  That said, the deportation order against Mr Javid, if enforced, only prevents him from coming to Hong Kong again.  It would not deprive him of his freedom to stay with [Ms Mak] and take care of their three children in any places outside Hong Kong if they wish to do so.  Even if [Ms Mak] does not choose to reside in a place outside Hong Kong with Mr Javid, she and their children are still free to travel abroad to visit Mr Javid any time they wish.

34.  Having considered all circumstances of the case, it is considered that the grounds put forth in the present request do not sufficiently justify suspension / rescission of the deportation order made against Mr Javid.  It is recommended that the request for rescission of the deportation order made against Mr Javid be rejected and the suspension of deportation order should not be considered.

35.  The recommendation was endorsed up the chain of command including by the PS for S on 20 January 2023.  By letter of that date addressed to the Applicant and Ms Mak, they were informed of the decision (i.e. the 1^st Decision).  The terms of the letter were as follows:

I refer to letters from yourself and your legal representatives dated 7 April 2021, 26 April 2021, 10 May 2021, 11 May 2021, 13 December 2021, 11 February 2022, 1 August 2022 and 11 August 2022 respectively regarding the request for suspension and rescission of the deportation order made against Mr Javid.

The power to suspend and rescind deportation orders conferred upon the Chief Executive by sections 54 and 55 of the [Ordinance] respectively, has been delegated to the [PS for S] pursuant to section 63 of the Interpretation and General Clauses Ordinance (Cap. 1).

Your request has been carefully considered by the [PS for S].  Having taken into account all the circumstances of the case, the [PS for S] is not able to find sufficient justification for suspending and rescinding the deportation order made against Mr Javid.  In the circumstances, the decision to deport Mr Javid from Hong Kong for life still stands.

36.  By letter dated 21 February 2023, solicitors for the Applicant referred to the 1^st Decision and reminded the PS for S that the Applicant’s letter dated 7 April 2021 had requested a consideration of whether the Deportation Order could be subjected to a limited period of time, say for example a period of 6 months or one year (in addition to the request for suspension or rescission).  However, the solicitors said that matter did not appear to have been addressed, which would amount to a fettering of discretion.  Reference was made to the possibility of judicial review proceedings.

37.  An officer acting for the PS for S replied by way of letter dated 27 March 2023 (i.e. the 2^nd Decision).  The letter stated (without inclusion of the footnotes):

I refer to your letter dated 21 February 2023.  I am authorised to give you a reply.

Concerning your inquiry on deportation order, pursuant to section 20(1)(a) of the [Ordinance], the [PS for S], under the delegated authority pursuant to section 63 of the Interpretation and General Clauses Ordinances (Cap. 1), may make a deportation order against an immigrant if he/she has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years.

It is well-established from legal authorities that a deportation order made under section 20(1)(a) of [the Ordinance] is prima facie for life, absent special circumstances.  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.

On the other hand, sections 54 and 55 of [the Ordinance] provide for the power of the [PS for S], under the delegated authority pursuant to section 63 of Cap. 1, two respectively suspend or rescind a deportation order and to impose any conditions as he thinks fit. The [PS for S] would consider each and every case on its individual merits and the relevant circumstances in accordance with the laws of Hong Kong and the prevailing immigration policy in the exercise of his discretion under sections 54 and 55 of [the Ordinance].

The case of [the Applicant] has been considered by the [PS for S].  The [PS for S] is not satisfied that there are any strong and exceptional circumstances warrant in suspension or rescission of the deportation order made against [the Applicant] after taking into account all the circumstances of the case.

Subject to the above, all of the HKSAR Government’s rights (including but not limited to referring this letter to the Court should the circumstances require) are hereby expressly reserved.  We further expressly reserve our right to seek cost against your client if any unmeritorious proceeding shall be taken out subsequently.

38.  The Applicant does not regard that letter as having answered the point relating to the request to shorten the Deportation Order, hence the challenge to the 2^nd Decision made in these proceedings.

39.  After these proceedings were commenced, the PS for S took note that Ground 3 of the proposed judicial review challenges the 2^nd Decision for “fettering of discretion” because the PS for S had failed (or refused) even to consider exercising the power to vary the tenor of the Deportation Order from “for life” to one applicable for a fixed period, despite having been expressly requested to consider this.

40.  There was then produced an internal memorandum M.2, specifically to address those contentions, and to seek the PS for S’ confirmation of the refusal decision for the avoidance of doubt.  Under the heading ‘Confirmation Sought’, M.2 states as follows:

10.  Having considered all circumstances of the case, in view of Mr Javid’s allegations in Ground 3 of the judicial review, for the avoidance of doubt, we write to seek your confirmation of the decision conveyed in the letter dated 27 March 2023, namely to refuse Mr Javid’s request to shorten the period of deportation order.

41.  The requested confirmation was supported, recommended and agreed up the chain of command to and including the PS for S, who indicated his agreement on 14 June 2023.

D.  Intended Grounds of Review

42.  In the introductory section of the Form 86, the Applicant submitted that the Decisions are flawed for the following reasons:

(1)  First, the PS for S has failed to take into account relevant considerations, namely that the Applicant: (1) no longer has a second marriage and has no family ties outside Hong Kong; (2) would be based in Hong Kong caring for his family just as he had been during the Suspension (i.e. the previous periods of suspension of the Deportation Order); (3) would, if the Deportation order was re-suspended, remain in Hong Kong in a manner wholly consistent with the PS for S’ decisions to suspend the Deportation Order during the Suspension (Ground 1).

(2)  Second, the Decisions are irrational or perverse because the personal circumstances of the Applicant are materially the same as those that obtained during the Suspension – and the decision-maker did not find otherwise – and yet the opposite decision had been reached (Ground 2).

(3)  Third, the PS for S failed to consider exercising his discretion to shorten the period of the Deportation Order, thereby fettering his discretion (Ground 3).

43.  Grounds 1 and 2 apply to both the 1^st and 2^nd Decisions, while Ground 3 concerns the 2^nd Decision only.

44.  In his oral submissions, Mr Parker perhaps slightly recast the points by stating that the application raised the following three questions (though he accepted the first two questions would logically be considered together):

(1)  whether the PS for S in refusing to re-suspend the Deportation Order took into account the fact that the material circumstances were the same as when the PS for S made the earlier suspension decisions?

(2)  Whether the decisions articulate a rational basis for reaching a different outcome than the earlier suspension decisions?

(3)  In relation to the 2^nd Decision, whether the PS for S fettered his discretion to shorten the period of the Deportation Order.

45.  In her submissions, Ms Cheung suggested that this was more than a slight recasting, but a significant change in case.  Having considered the way the matters were expanded in the latter parts of the Form 86 (see, for example, §§58-59), I do not think that is correct.  The real thrust of the Ground 1 – and the connected Ground 2 – has throughout been identified by reference to the matter of consistency or inconsistency between the 1^st Decision and the earlier decisions to suspend the Deportation Order.

46.  In any event, I can deal with each of the Grounds in turn.

E.  The Statutory Provisions Engaged

47.  But, before turning to deal with the intended Grounds of review, it is appropriate to set out the relevant statutory provisions engaged as regards the making and potential suspension or rescission or imposition of conditions relating to deportation orders.

48.  Section 20 of the Ordinance materially provides as follows:

20.  Power to deport

(1)  The [Chief Executive] may make a deportation order against an immigrant if –

(a)  the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b)  the [Chief Executive] deems it to be conducive to the public good.

(2)-(4)  (repealed)

(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.

…

49.  Sections 54 and 55 of the Ordinance materially provide as follows:

54.  Suspension of deportation orders

(1)  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.

(2)  The [Chief Executive] may rescind the suspension of a deportation order, whereupon the deportation order shall again be in force in respect of the person against whom it was made.

…

55.  Rescission of deportation orders

(1)  The [Chief Executive] may rescind the deportation order made against any person, but the rescission of the deportation order shall not affect the power of the [Chief Executive] to make another such order against that person.

(2)  The [Chief Executive] may, on rescinding the deportation order made against any person, require that person to enter into a recognizance in the prescribed form in such amount and with such securities as the [Chief Executive] may specify.

…

50.  The powers exercisable under sections 20, 54 and 55 have been delegated to the PS for S.

F.  Ground 1: alleged failure to take account that circumstances were wholly consistent with circumstances of earlier decisions

51.  It is convenient to deal with two preliminary points first, though I think each point is perhaps something of a red herring in the light of the way the intended challenge was really formulated and pursued.

52.  The first preliminary matter is as to whether the compassionate or humanitarian considerations put forward by the Applicant were as a matter of fact taken into consideration at all.  In my view, plainly they were.  First, Mr Parker’s attempt to bifurcate memorandum M.1 into two separate and distinct “descriptive” and “operative/analytical” parts is untenable.  His argument is that §§1-29 of M.1 merely describe the various matters there so doubt, but that the analysis is limited to §30-34.  With respect, this makes little sense in context.

53.  First, it is unclear why – and unlikely that – the various considerations which had been squarely placed before the PS for S in the form of a summary of the Applicant’s representations in the file minute, with annexes of his and Ms Mak’s and the solicitors’ letters, culminating in the SB officer’s recommendation on how the case may be decided, the PS for S would not have taken those matters stated in the summary in the body of the minute into account.  Secondly, there was something of a history to the case, since 2012, some of which is rehearsed in the earlier part of M.1.  Thirdly, it is to my mind simply unrealistic to suggest that the PS for S setting out the history and updates (with the supporting documents) did not have the points in mind, when he turned to consider what decision to make.  There is neither cogent factual nor legal basis to segregate the memorandum M.1 into the two separate elements suggested.

54.  Indeed, where (see below) the decision-maker is not legally bound to, but does give regard to and references at some length, the humanitarian considerations, it would also be extremely unlikely that he did not take them those relevant considerations into account.  It also does not follow that the decision-maker has failed to take those considerations into account simply because the decision made is adverse to such considerations (though the Applicant’s argument has this flavour).

55.  Further, the specific matters to which it is said the PS for S failed to have regard – such as (1) the Applicant’s strong family ties in Hong Kong, (2) his close relationship with Ms Mak, (3) the children are young and have been living with the Applicant and Ms Mak since birth, and (4) the Applicant has not committed any crime since 2004 – were plainly adequately set out and referenced in M.1: see, in particular, paragraphs 9, 19, 21, 24, 30, 33 and 34, as set out in full above.  Even if the PS for S did not expressly mention them again, I do not think he can be taken to have overlooked them.  Rather, it seems to me that the various points, including the key submissions made by the Applicant on those points, would have been firmly in the mind of the PS for S when making the 1^st Decision.

56.  The second point relates to the settled legal principle that, 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.  This is because it is necessary to distinguish between three different categories of consideration, being: (1) those matters clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had; (2) those matters clearly identified by the relevant legislation as considerations to which regard must not be had; and (3) those matters to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so.  Absent a statutory code of compulsory considerations, what is and what is not a relevant consideration for a public decision-maker to have in mind is for the decision-maker to decide, and not for the Court.  Further, as to the third category, and to the extent that the decision-maker does decide to take into account any particular factor as being relevant in the exercise of his discretion, the weight that should be given to that factor is likely a matter for the decision-maker, and not for the Court.

57.  Ms Cheung stressed in her written and oral submissions that the compassionate or humanitarian considerations put forward by the Applicant in support of his requests for rescission or suspension of the Deportation Order are considerations which fall into the third category.  Therefore, the PS for S was simply not legally bound to take them into account.  He had no general duty to take compassionate or humanitarian factors into account, even where family ties might be affected.  I think that this submission – whilst undoubtedly correct, and in any event not challenged by Mr Parker – is something of a red herring simply because, as Ms Cheung herself points out, the PS for S did take the compassionate or humanitarian considerations into account in this case.

58.  The real crux of the argument under Ground 1 is whether, when taking those considerations into account, the PS for S nevertheless failed to recognise and/or properly take into account that the relevant considerations were consistent with the same considerations as had previously led to the decisions to suspend the Deportation Order.  This is the point which Mr Parker says the PS for S failed to “grapple with”, and this is, indeed, the very premise of Ground 2.

59.  This is why Mr Parker is in effect driven to address both Grounds 1 and 2 together.

60.  Another reason for that was pointed out by Ms Cheung, which is that Grounds 1 and 2 are mutually exclusive.  If it is the Applicant’s case that the PS for S did not take into account the matters as alleged in Ground 1, then Ground 2 simply falls away as no Wednesbury unreasonableness scrutiny could arise.  Alternatively, as Ms Cheung put it, if the PS for S did not take the matters into account when he was not legally obliged to do so, then Ground 1 fails, and so does Ground 2; however, if the PS for S did take matters into account, then Ground 1 fails but it is necessary to consider Ground 2.

61.  Ground 1 is not reasonably arguable with reasonable prospects of success.  But, as identified above, that is for reasons which make it necessary next to consider Ground 2.

G.  Ground 2: alleged irrationality / Wednesbury unreasonableness

62.  There can be no dispute that the Applicant’s task in seeking to invoke the irrationality ground is daunting (as it is sometimes put), or that the hurdle is very high (as it has otherwise sometimes been put).  It is settled that, as a matter of law, the weight to be attached to a particular humanitarian consideration in a particular case at a particular point in time is a matter for the Director or the PS for S (depending on the nature of the decision, and the relevant decision-maker): see, for example, BI v Director of Immigration [2016] 2 HKLRD 520 at §105; PVQ v Permanent Secretary for Security [2021] HKCA 444 at §59

63.  Of course, this does not mean that the decision-maker is above the law in the exercise of the power of immigration control.  As was also pointed out in the BI case at §92(4), the rule of law manifests itself by the court returning a supervisory jurisdiction in such exercise of power, and the court will ensure that the decision-maker’s exercise of power does not contravene the legal rights of the persons involved.  As §92(4) continues:

… if the Director fails to take relevant consideration that he is legally required to consider into account, the decision would not be valid.  Likewise, if the Director takes into account irrelevant consideration, namely consideration which he legally should not take into account, the decision would again be vitiated. …  Further, the court can also intervene if the Director does not act fairly in the decision-making process.  This is the principle of fairness.  The requirement of fairness can call for intervention by the courts when the Director did not exercise independent judgment in the administration of a policy adopted voluntarily by him … .  Yet further, in an extreme case where the Director makes a decision which in public law terms can be described as Wednesbury unreasonable, the court can also interfere on the principle of rationality.

64.  As already identified, the main thrust of the intended challenge relates to the criticism of a failure to be consistent.  In this regard, it is necessary to dispel any misconception as to the status of matters of consistency in public law.  Though Ms Cheung thought Mr Parker might have gone further, I think it is clear (and Mr Parker confirmed in his reply submissions) that his submission is not that inconsistency is itself a ground of judicial review, but rather that it is part of – or, as he put it, a species of – irrationality.  Inconsistency is the symptom and irrationality is the disease, because a rational decision-maker would make two consistent decisions when faced with two consistent sets of circumstances, or at least would not make inconsistent decisions without a good explanation being given.

65.  But, most of the authorities dealing with the question of consistency are dealing with a situation where two different persons make similar applications on similar facts, where it would be expected that they would be treated in a consistent manner.  In those circumstances, it is clear that consistent dealing is at least desirable, so far as possible. Absent that, some unfairness in treatment between individuals may be identified.  However, this case is rather different.  It involves the same person making similar applications on facts which may have some similarities, but which could well have changed (and in fact have changed) as a result of the effluxion of time and the events which have occurred during that effluxion of time.

66.  As to the criticism that the PS for S is failed to “grapple with” the supposedly consistent underlines circumstances, Mr Parker submits that no attempt was made to explain why on the same set of facts a different decision has been reached.  However, first, the intended challenge is not a ‘reasons’ challenge.  Secondly, this point pre-supposes that the PS for S did not actually take into account the humanitarian and compassionate considerations and the fact that previous decisions had been made to suspend, when the contrary position is entirely clear from the memorandum M.1, even if only the supposedly “operational” or “analytical” paragraphs of it are looked at.

67.  Ms Cheung submits that the different decisions can be explained by the fact that – and, indeed, are simply the result of – different weights given to the various factors at different times.  Mr Parker submits that still leaves open the question as to what factors were treated differently than when previously dealt with, and the lack of explanation as to the difference is a symptom of the underlying irrationality.  For example, he says it would be entirely speculative to think that one difference might be the age of the children.

68.  I disagree.  It seems to me that the entire argument on the alleged inconsistency is actually based upon a false premise, namely that the circumstances identified and put forward at the time of the request for re-suspension of the Deportation Order are really materially the same as (consistent with) the circumstances leading to the previous suspension decisions.  They were not.  Focusing on the Applicant’s marital status – and the return to having only one ‘family’ – also overlooks the other matters which properly felt to be taken into account.

69.  Although the Applicant says that the decision-maker did not find otherwise than that the personal circumstances of the Applicant are materially the same as those that obtained during the prior periods of suspension, nor did the decision-maker that the personal circumstances were materially the same.  As I say, they were not.

70.  This is not least because of the effluxion of time between 2017 and 2022.  The Applicant’s argument essentially requires pretending that either (a) no time has actually passed, and/or (b) nothing has happened in the time which has actually passed.  This is simply unrealistic.  Indeed, the Applicant himself expressly relies on events which have happened in the relevant intervening period, in his case in particular the Divorce and his continuing close relationship with Ms Mak.  But, that there was the Divorce does not mean that there was no second marriage. Nor does it mean that the views taken of the Applicant’s behaviour in that period falls simply to be completely ignored.  Nor does it mean that time has stood still.  To put it another way, the Divorce did not turn the clock back, nor send him back to square one.

71.  It is a fact that the passage of time means, for example, that the children have become older.  Whilst the earlier considerations expressly referred to the children as being of tender age, they can rightly be described or thought of as no longer of tender age.  By early 2022, they were aged 12, 10, and 8 respectively; and by the time of the 1^st Decision on 20 January 2023, they were a further year older.  Those facts are apparent on the face of M.1 as matters taken into account.

72.  Stepping back, it would be seen that the Applicant’s argument essentially amounts to suggesting that because the Deportation Order was previously suspended, primarily because it was thought to be in the best interests of his children at the time, it must always continue to be suspended (presumably, at least until the children are no longer children), or until the circumstances pointing towards a suspension on compassionate grounds have somehow weakened.  That is contrary to the recognition that there can be no claim in this case to any legitimate expectation of continuing suspension or re-suspension.

73.  Further, as Ms Cheung submitted, unless the Deportation Order is rescinded, there will likely come some point in time when it would be effected.  As she put it more baldly, the PS for S might form the view at some point in time that ‘enough is enough’.  Continued suspension without an obvious end point might be thought tantamount in effect to rescission.  But in this case, the requests for rescission have always been refused (and there is no challenge in that regard), and I think it can be said there is every indication that a decision to rescind the Deportation Order looks at least unlikely, at least at present.

74.  Reference can also be made to the passage from the BI case at §105, which emphasises that the weight to be attached to a particular humanitarian consideration in a particular case is to be attached at a particular point in time.  The relevant point in time is the time of the decision-making, not some earlier time which pretends that nothing has happened in the intervening period as might potentially change the view as to what weight is to be given to the particular humanitarian consideration.

75.  The task for the PS for S was to determine, on the Applicant’s request for re-suspension made in 2022, whether at that time the circumstances of the case were considered sufficiently to justify suspension of the Deportation Order.  That is precisely the question which the PS for S asked and determined, as evidenced from memorandum M.1, and his agreement to the recommendation made in it.

76.  That question obviously involved recognition that previous suspensions had been granted, and that recognition was expressly recorded.  But the previous suspensions granted in 2012 to 2018 could not have acted in any way as would have fettered or bound the fresh exercise of discretion by the PS for S in 2022/2023.  It is trite that the weight to be given to factors may vary over time, in the light of other factors as may vary over time.

77.  Having considered all the circumstances of the case, and having given the weight to those circumstances at that time as seemed appropriate to the PS for S (it being a weighing exercise for him, and not for the court), the PS for S determined that the circumstances would not sufficiently justify suspension or rescission of the Deportation Order.

78.  I do not think that 1^st Decision is arguably irrational.  Further, in so far as this Ground 2 is directed at the 2^nd Decision, because it repeated or affirmed the 1^st Decision, nor is that arguably irrational.

79.  In conclusion, Ground 2 does not identify a reasonably arguable grounds with reasonable prospects of success.

H.  Ground 3: alleged fettering of discretion

80.  I have set out above the material provisions of section 20 of the Ordinance.  They identify that the primary decision as to the period of prohibition from being in Hong Kong at any time after the making of a deportation order is decided at the time of the making of the deportation order.

81.  As is explained in the evidence filed for the PS for S, a deportation order is ordinarily or prima facie for life, absent any special circumstances.  This is a position well supported by authority, which I do not think I need to recite.  Further, to adopt the position that a deportation order should, in the particular case, be for life does not evidence the application of an “overly rigid policy”.

82.  In this case, the Deportation Order was made for life.  It clearly identified that the Applicant was not welcome in Hong Kong, would not be welcomed in Hong Kong in the future.  Further, in this case, there can be no challenge now to the fact that the Deportation Order was made for life.

83.  Of course, not least because of the provisions of sections 54 and 55, this did not prevent future consideration of possible suspension or rescission.  But it seems to me that there is at least a strong legal argument for saying that the time for deciding whether a deportation should be for life or some other (shorter) period is the time when it is made. Once made, the relevant powers granted under sections 54 and 55 are powers of suspension and rescission (not shortening, or fixing a different period). In other words, sections 54 and 55 do not identify a power to vary the period of effect of the deportation order already made, and only identify the powers either to suspend it or to rescind it.

84.  In any event, even assuming that sections 54 and 55 do grant the power to the PS for S to vary the period of effect of the deportation order already made, the real complaint in this case seems to me to be a factual one, namely that the PS for S has not actually made any decision as to whether or not to shorten the Deportation Order.  The argument put forward on behalf of the Applicant is that the PS for S was specifically requested, and then reminded that he had been requested, to consider shortening the Deportation Order.  But it is said the letter constituting the 2^nd Decision identifies that the PS for S simply continued to fail to address and answer that request.

85.  As I indicated during oral argument, I am not sure this really amounts to a point relating to fettering of discretion, unless the discretion is said to have been fettered by the failure or refusal in fact to answer at all the request actually made.

86.  But there seems to me to be some force in the argument that the 2^nd Decision letter does not clearly address the request to shorten the Deportation Order.  On its face, there is no direct answer to that request.

87.  Ms Cheung submits that, when read in context, the third paragraph of the 2^nd Decision (set out above) was the operative part communicating to the Applicant, in “a rather polite manner”, that the PS for S declined to shorten the Deportation Order made against him.  She says that the 2^nd Decision letter first explained that a deportation order is ordinarily for life, absent any special circumstances, and that a deportation order is not to be likened to a sentence of imprisonment which has an end and after which the released prisoner can expect to return to a normal life.

88.  She says the letter then goes on to say – “on the other hand” – that there remains the power to suspend or rescind.  But the letter as a whole makes clear that the request to shorten the Deportation Order has been declined on the same basis that there was a refusal to suspend or rescind.

89.  I think it is important to view the response in the context of the original request, first made by the Applicant’s letter dated 7 April 2021, which request was referred to and repeated in the Applicant’s solicitors’ letter dated 21 February 2023 (see above). As it was put in the Applicant’s original letter, the request was as follows:

•  I request you humbly to remove my lifetime deportation and suspend/rescind my deportation on urgent basis OR

•  I request you to at least make my deportation for a limited period e.g. for 6 months or one year (or as DOI/SOS seems ok) and suspend/rescind my deportation order on urgent basis due to the following reasons: …

90.  The Applicant was requesting the PS for S to suspend or rescind the Deportation order immediately, and if not immediately then at some point in the relatively near future.  On that basis, the request to ‘shorten’ the Deportation Order was in reality simply that: (1) a request made as an alternative to the request to suspend/rescind it immediately; and (2) was a request to suspend/rescind it at some future point of time, if not immediately.

91.  This makes logical sense.  Any request to ‘shorten’ the effectiveness of the period of the Deportation Order is indeed in reality a request to suspend or rescind it, not immediately but after such other period as is suggested or the PS for S thinks fit.

92.  Therefore, though I accept it was not as clear as it might have been, I think that the 2^nd Decision did actually address the request.  The author of the letter stated that the Deportation Order was (as is typical) one for life, and not one for a fixed – or shorter – period after which the Applicant might return to a normal life, like a person who has completed a prison sentence after conviction of crime. It was stated that having carefully considered the circumstances the PS for S did not think there were grounds at that time to suspend or rescind the Deportation order.  Logically in context, the PS for S was identifying that he was declining to suspend or rescind the Deportation Order at all, whether immediately or at some suggested future period in 6 or 12 months’ time.

93.  I need to address internal memorandum M.2.  It has been criticised by Mr Parker as being a clear attempt ex post facto to shore up a decision which is bad on its face, which should not be permitted by the Court.  Alternatively, he says it was an attempt to provide ex post facto reasoning for the 2^nd Decision.  Further he says that, anyway, it cannot give rise to any futility argument, as that argument can only arise if Ground 3 is made out, namely a finding that there was a fettering of the discretion.

94.  I have carefully considered M.2.  On balance, I do not accept that it was an attempt to shore up a decision recognised as having been bad on its face.  It does not read in that way.  Nor does it purport to contain any reasoning.  Rather, it seems to me to have been an attempt to seek factual confirmation – albeit in what in other circumstances might be described as a “leading” way – as to whether the PS for S had made a decision not to shorten the Deportation Order.  Plainly, the PS for S had decided not to suspend or rescind the Deportation Order, either immediately or at the suggested future period (amounting to ‘shortening’), and he said so.  But, in any event, I have given no weight to memorandum M.2 in my overall consideration.  It suffices to look at the documentation contemporaneous to the 2^nd Decision itself.

95.  In conclusion, I would have granted leave to apply for judicial review on Ground 3.  But, I dismiss the substantive application for review.

96.  I also accept that memorandum M.2 does identify that, even if there had been prior fettering of the discretion, remitting the matter back to the PS for S would be futile, as he is bound to reach the same decision.

I.  Result

97.  In the circumstances, I refuse leave to apply for judicial review in respect of both Grounds 1 and 2.  Further, though I would grant leave to apply for judicial review in respect of Ground 3, I dismiss the substantive application for judicial review on that ground.

98.  At present, I see no reason why cost should not follow the event.  Therefore, I order the PS for S’ costs to be paid by the Applicant, to be taxed if not agreed.  However, as I have not heard argument on the question of costs, I make that order in the first instance on a nisi basis.  The costs order nisi will become absolute after 14 days if no application for variation is issued.  Any such application for variation will be dealt with on paper.