PVQ AND OTHERS v. PERMANENT SECRETARY FOR SECURTIY

HCAL 21/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 21 OF 2017

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J U D G M E N T

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INTRODUCTION

1.  By their Form 86 dated 25 January 2017, the applicants applied for leave to apply for judicial review of the decision of the Permanent Secretary for Security (“the Permanent Secretary”) made on 21 April 2016 (“the Decision”) refusing to rescind the deportation order made against the 1^st applicant dated 13 April 2007 (“the Deportation Order”).

2.  The applicants accept that the leave application was made out of time and thus an extension of time to make the application is required (see paragraph 63 the Form 86).

3.  Upon consideration of the applicants’ ex parte application for leave to apply for judicial review, I gave (inter alia) the following directions on 3 February 2017, namely, that there be a rolled up hearing of:-

(1)   the application for an extension of time to apply for leave to apply for judicial review;

(2)   the application for leave to apply for judicial review in the event that an extension of time was granted; and

(3)   the substantive application for judicial view in the event that leave to apply for judicial review was granted.

4.  On 21 August 2017, the applicants took out a summons seeking leave to file and serve the 3^rd affirmation of Tong Thi Xuan, a paralegal of Daly & Associates, to adduce evidence which, it was said, would support the ground of judicial review based on discrimination.

5.  This is my judgment on the various applications which were heard on 30 August 2017.

BAsic FACTS

(i)   Personal and immigration background

6.  The 1^st applicant, born on 4 May 1961, is a Vietnamese national.  He came to Hong Kong on the strength of his Vietnamese passport on 16 March 2003 and was permitted to remain in Hong Kong as a visitor until 30 March 2003.  He did not depart from Hong Kong despite the expiry of his limit of stay, and went underground for some 3 years until he was arrested by the Police on 18 March 2006 for the offences of (i) possession of offensive weapon (a beef knife), (ii) possessing a false instrument (two forged Construction Industry Safety Training Certificates), (iii) breach of condition of stay, and (iv) possession of forged identity card (two forged Hong Kong identity cards).  On 11 April 2006, the 1^st applicant was convicted of the aforesaid offences, and sentenced to a total of 19 months’ imprisonment.  On 13 April 2007, the Deportation Order (more particularly described below) was issued against the 1^st applicant.  He was deported to Vietnam on 26 April 2007.

7.  The 2^nd applicant was born in Vietnam on 23 June 1981, and is a Hong Kong permanent resident.

8.  On 2 June 2009, the 2^nd applicant gave birth to the 3^rd applicant in Vietnam.  In the birth certificate of the 3^rd applicant, it is stated that the 1^st applicant and the 2^nd applicant are the father and mother respectively of the 3^rd applicant.  The 3^rd applicant is currently permitted to stay in Hong Kong as a dependant of the 2^nd applicant.

(ii)   The Deportation Order

9.  Each of the offences of which the 1^st applicant was convicted in 2006 was an offence punishable for not less than 2 years’ imprisonment, and was therefore a deportable offence under section 20(1)(a) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  In view of the serious nature of the offences and the custodial sentences imposed on the 1^st applicant for those offences, the Director of Immigration (“the Director”) took the view that the 1^st applicant’s continued presence in Hong Kong would pose a threat to law and order here, and applied to the Secretary for Security (“the Secretary”) for the issue of a deportation order against the 1^st applicant on 3 April 2007.

10.  On 13 April 2007, the Permanent Secretary made the Deportation Order against the 1^st applicant for life.

(iii)   The 1^st applicant’s subsequent illegal return to Hong Kong and various applications made by him since that time

11.  On 13 July 2010, the 1^st applicant was arrested by the Police in Hong Kong for the offence of using forged document of identity.  According to 1^st applicant, he returned clandestinely to Hong Kong sometime in July 2010.

12.  On 15 July 2010, the 1^st applicant was convicted of the offences of (i) possession of forged identity card, (ii) possessing a false instrument, (c) remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong, and (d) breach of deportation order, and was sentenced to a total of 24 months’ imprisonment.

13.  On 13 May 2011, the 1^st and 2^nd applicants married in Hong Kong.  On 16 July 2011, the 1^st applicant applied for a dependent visa for residence in Hong Kong, with the 2^nd applicant named as his sponsor.

14.  On 19 December 2011, the Immigration Department informed the 1^st applicant that his dependent visa application would not be considered while there was a deportation order in force against him.  The 1^st applicant made further dependant visa applications on 10 September 2012 and 13 August 2014 respectively.  The Immigration Department’s responses on 24 September 2012 and 25 September 2014 respectively were to the same effect.

15.  The 1^st applicant made a non-refoulement claim on 21 March 2014, which was refused by the Director on 18 July 2016.  On 29 July 2016, the 1^st applicant lodged an appeal/petition with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office against the Director’s refusal of his non-refoulement claim.  The appeal/petition is, I am given to understand, currently under consideration.

(iv)  The Decision

16.  By a letter dated 20 December 2013, Daly & Associates on behalf of the 1^st applicant applied to the Secretary for Security for rescission of the Deportation Order.  In that letter, Daly & Associates contended that there had been fundamental changes in the 1^st applicant’s circumstances which would justify the application. The following matters (amongst others) were relied upon:-

(1) The 1^st applicant’s offences, for which the Deportation Order was made, were committed more than 3 years ago.  He had served a sentence that was commensurate with the seriousness of the offences.  There was no evidence to suggest that he would pose any threat to the security, law and order of Hong Kong.

(2) The 1^st applicant’s marriage with the 2^nd applicant was genuine and stable, and has produced a son, born on 2 June 2009.  The natural consequence of the enforcement of the Deportation Order would be to split the family, and this would be against the best interest of the child, place an unnecessary strain on their relationship and possibly harm the family structure beyond repair.

(3) There was no question as to the financial ability of the 2^nd applicant to support the 1^st applicant.

(4) The wife and child were not responsible for the 1^st applicant’s earlier criminal conduct, and were entitled to have their own rights to family life properly considered and entered into the balance.

(5) The 2^nd applicant had the right of abode in Hong Kong and had lived here for over 14 years.  It was her wish that their son be raised and educated in Hong Kong.

17.  Some further submissions were made by Daly & Associates on behalf of the 1^st applicant by letters dated 2 April 2014, 20 May 2015 and 23 July 2015 respectively.  It is not necessary to recite the contents of those submissions in this judgment.

18.  On 28 March 2014, the Police, in response to the Immigration Department’s request for comment on the 1^st applicant’s application, stated that from the perspective of the Police, there were no grounds to support the request for rescission of the Deportation Order.

19.  In view of the 1^st applicant’s non-refoulement claim made on 21 March 2014, the Security Bureau wrote to Daly & Associates on 4 April 2014 stating that the application for rescission of the Deportation Order would be deferred pending the determination of the non-refoulement claim.  However, by letters dated 15 April 2014, 6 August 2014 and 16 October 2014 respectively, Daly & Associates urged the Security Bureau to process the rescission application without waiting for the outcome of the non-refoulement claim.  Accordingly, the Security Bureau proceeded to process the 1^st applicant’s rescission application.

20.  On 19 November 2015, the Director recommended to the Secretary that the rescission application should be rejected.

21.  As can be seen from the internal minutes of the Security Bureau (M.7), the 1^st applicant’s application for rescission of the Deportation Order was considered by an executive officer, a senior executive officer, the Principal Assistant Secretary for Security, and the Permanent Secretary successively.  At paragraphs 17 to 22 of M.7, the following was stated:-

“Effect of the Deportation Order

17. The deportation of [the 1^st applicant] was the consequence of his serious criminal convictions in Hong Kong. The fact that [the 1^st applicant] was further convicted of “Possession of forged identity card”, “Possessing a false instrument”, “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong” and “Breach of deportation order” after the issue of deportation order demonstrates that he is a repeated offender who does not respect the law and order of Hong Kong. As reflected by the heavy custodial sentence of 24 months for his convictions in 2010, the presence of [the 1^st applicant] poses a genuine threat to the security of Hong Kong. It is incorrect to say that the deportation order is another punishment of the crimes committed by [the 1^st applicant] in addition to his imprisonment sentences. It was held in Thapa Indra Bahadur (HCAL 18/1999) that a deportation order is the consequence of a decision that the relevant deportee is no longer welcome in Hong Kong and will not be welcome in the future.

Claimed family and children rights

18. The representations put forth regarding the relationship among [the 1^st, 2^nd and 3^rd applicants] have been fully considered. The marriage of [the 1^st and 2^nd applicant] took place in 2011 which was well after the making of the deportation order in 2007. Being a subject of deportation order, [the 1^st applicant] 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. The deportation order against [the 1^st applicant] only prevents him from coming to Hong Kong again. It would not deprive him of his freedom to stay with [the 2^nd applicant] and their son in Vietnam or any places outside Hong Kong if they wish to do so. Even if [the 2^nd applicant] does not choose to reside in a place outside Hong Kong with [the 1^st applicant], she and their son are still free to travel abroad to visit [the 1^st applicant] any time they wish.

20. As regards BL 37 which provides that “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”, it was decided in Gurung Deu Kumari (HCAL 76/2009) that the right under BL 37 is the right to procreate and to foster children. It is not a general right to family or a right to foster children in a particular manner or place. As regards provisions from other sources of laws, it was decided in Ubamaka Edward Wilson (FACV 15/2011) that section 11 of the HKBORO made it clear that these provisions are unavailable to persons like [the 1^st applicant] who have no right to enter and remain in Hong Kong. Based on the current jurisprudence in Hong Kong, there is no legal obligation to take into account the alleged family rights of [the 1^st applicant] and his family members under BL, ICCPR, ICESCR and CRC in considering the present request for rescission of deportation order.

Non-refoulement Claim

21. Even though [the 1^st applicant’s] non-refoulement claim is still under process, his legal representative has requested on 16 October 2014 at (56) that the present request for rescission of deportation order should be processed without waiting for the outcome of his non-refoulement claim. Thus, the alleged life risk in Vietnam as raised in his non-refoulement claim has not been taken into consideration in the present case.

Decision Sought

22. Having considered all circumstances of the case (except for those mentioned in para. 21 above), it is considered that the grounds put forth by his legal representative in the present request do not sufficiently justify rescission of the deportation order made against [the 1^st applicant].  We recommend that the request for rescission of the deportation order made against [the 1^st applicant] be rejected and the suspension of deportation order should not be considered.”

22.  The executive officer’s recommendation was supported by the senior executive officer and the Principal Assistant Secretary for Security, and accepted by the Permanent Secretary.

23.  On 21 April 2016, the Permanent Secretary made the Decision refusing to rescind the Deportation Order.

24.  By a letter also dated 21 April 2016, the Security Bureau informed Daly & Associates of the Decision, stating as follows:-

“Your request has been carefully considered by the Permanent Secretary. Having taken into account all the circumstances of the case, the Permanent Secretary is not able to find sufficient justification for suspending or rescinding the deportation order against the [1^st applicant]. In the circumstances, the decision to deport [the 1^st applicant] from Hong Kong for life still stands.”

PROPOSED GROUNDS OF JUDICIAL REVIEW

25.  As can be seen from the Form 86, three main grounds are advanced in support of the present application:-

(1) procedural unfairness/complete lack of reasons;

(2) irrationality/failure to take into account relevant considerations; and

(3) discrimination.

26.  In her written submissions on behalf of the applicants, Ms Olley also complained that the Director applied a wrong standard of “exceptionality/overwhelming factors” in considering the application for rescission of the Deportation Order and the Permanent Secretary was wrong to have made a decision based on or infected by such approach.  As pointed out by Mr Hew on behalf of the Permanent Secretary, this complaint was not raised in the Form 86.  To be fair to Ms Olley, she did not rely on this complaint at the forefront of her arguments. Similar complaints have previously been considered, and rejected, by the court: see Sabir Mohammed and Another v Permanent Secretary for Security, HCAL 114/2015 (27 January 2017), at paragraphs 57-68 per Au J, which I adopted and applied in MI and IYW v Permanent Secretary for Security, HCAL 44/2016 (9 May 2017), at paragraphs 44-45.  In any event, a fair reading of M.7 does not support the contention that the Permanent Secretary’s decision was based on, or infected, by the approach of “exceptionality/overwhelming factors”.  There is thus nothing in this complaint.

Ground (1): procedural unfairness/complete lack of reasons

27.  Ms Olley complains that the Permanent Secretary’s letter conveying the Decision to the 1^st applicant’s legal representatives was devoid of substantive reasoning.  It is said that the Permanent Secretary did not refer to any of the circumstances of the case, which would have made it possible to see which had been taken into account and how they had been treated and weighed up, and therefore to assess the legality and rationality of the Decision.  It is further said that the applicants are entitled to be informed of and to understand the reasons for the Decision, and that the absence of reasons is especially unacceptable in the present case involving a young child because the impact of the Decision upon his interests is very serious.

28.  I do not accept this complaint, for a number of reasons.  First, the 1^st applicant did not challenge the original Deportation Order made in April 2007, but sought a rescission of the Deportation Order.  Plainly, it was for the 1^st applicant to put forward sufficient grounds to justify the rescission of the Deportation Order.  The 1^st applicant’s justification, as stated in Daly & Associates’ letter dated 20 December 2013, was that there had been some fundamental changes in his circumstances.  The Permanent Secretary did not, however, consider that there was sufficient justification for suspending or rescinding the Deportation Order, and that was the reason given for the Decision in his letter dated 21 April 2016.  I do not see how it can be said that no reason was given for the Decision.  Neither do I consider that the Permanent Secretary was under any duty to explain why the alleged changes of circumstances relied upon the 1^st applicant would not be sufficient to justify the rescission of the Deportation Order.  Whether there was in fact sufficient justification for the rescission of the Deportation Order is a different question, which will be considered below.

29.  Second, as a matter of principle, the Permanent Secretary is under no duty to give reasons for rejecting an application to rescind a deportation order made against someone who has no legal right to stay or remain in Hong Kong: see Sabir Mohammed, ante, at paragraph 91(1); BK & CH v Director of Immigration, HCAL 24 & 31/2009 (5 January 2010), at paragraph 69 per A Cheung J (as he then was), which I adopted and applied in Nisa Azizan & Anor v Director of Immigration & Anor, HCAL 203/2015 (15 April 2016), at paragraph 47.

30.  Third, a reasons challenge can only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision: see South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, at 1964 per Lord Brown, quoted with approval by A Cheung J (as he then was) in Smart Gain Investment Limited v Town Planning Board, HCAL 12/2006 (6 November 2007), at paragraph 30.  In the present case, the matters which the Permanent Secretary took into account in coming to his Decision were clearly set out in M.7: see Safder Tehseen v Permanent Secretary for Security (2014) 17 HKCFAR 567, at paragraphs 17-19, which I applied in Touray Edrisa v Permanent Secretary for Security, HCAL 91/2016 (15 May 2017), at paragraph 54.  The applicants have not been handicapped in any way in advancing the present application, or suffered any substantial prejudice, as a result of the alleged lack of reasons in the Security Bureau’s letter dated 21 April 2016.  Hence, the complaint of lack of reasons cannot justify the court intervening in the Decision by way of judicial review: see Sabir Mohammed, ante, at paragraph 91(2)-(3).

Ground 2: irrationality/failure to take into account relevant considerations

31.  In paragraph 60 of the Form 86, it is contended that the Permanent Secretary failed to take into account the following relevant matters and thus the Decision was irrational:-

(1) the substantial change of circumstances in the 1^st applicant’s case since the Deportation Order was made, namely, the 3^rd applicant’s birth and the 1^st and 2^nd applicants’ marriage;

(2) the impact of the Decision on the 3^rd applicant;

(3) the impact of the Decision on the 2^nd applicant;

(4) the effect of the Decision upon the family as a whole and its proportionality in light of that;

(5) the limitation of the rights and freedoms of the 2^nd and 3^rd applicants as Hong Kong residents, as a result of the Decision;

(6) to what extent there was a risk of re-offending;

(7) the fact that the 1^st applicant was an asylum claimant;

(8) the reasonableness of expecting the 2^nd and 3^rd applicants to leave with the 1^st applicant in order to continue their family life;

(9) obligations under the UN Convention on the Rights of the Child (“the CRC”); and

(10) the applicants’ fundamental rights, including the 2^nd applicant’s right of abode as a permanent resident protected under Article 24 of the Basic Law and the applicants’ right to respect for their family life.

32.  In paragraph 61 of the Form 86, it is said that the applicants had a legitimate expectation that in making the Decision, the Permanent Secretary would take into account the status of the 2^nd applicant as a person having the right of abode in Hong Kong and her rights under the Basic Law and Hong Kong Bill of Rights.  It is further said that the special vulnerability of the 3^rd applicant as a child who would be affected by the Decision also gives rise to a legitimate expectation that his interests would be taken into account as a matter of course and without any need for the issue to be raised with the decision maker.

33.  With the exception of the matters mentioned in paragraph 31(6) and (7) above, the rest of the matters relied upon by the applicants relate to “family rights” or “family circumstances” of the 1^st, 2^nd and/or 3^rd applicants, the 3^rd applicant’s rights as a child, and the 2^nd applicant’s right of abode in Hong Kong.

(i)   The applicants’ family rights and the 2^nd applicant’s right of abode in Hong Kong

34.  In so far as the applicants’ case is put on the basis of the 1^st, 2^nd and/or 3^rd applicants’ “family rights” under the Hong Kong Bill of Rights or the 2^nd applicant’s right of abode in Hong Kong, the same or substantially the same arguments have been considered and rejected in many authorities in Hong Kong, including authorities which are binding on me, see for example Hai Ho Tak v Attorney General [1994] 2 HKLR 202 (CA), Marilyn Aringo v Director of Immigration, HCAL 96/2004 (5 September 2005), at paragraph 43 per Hartmann J (as he then was); Gurung Ganga Devi v Director of Immigration, HCAL 131/2008 (23 September 2009), at paragraphs 20-23 and 27-31 per Saunders J; Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraphs 40-43 per Andrew Cheung J (as he then was); Li Nim Han v Director of Immigration [2012] 2 HKC 299, at paragraphs 12-13 per Lam J (as he then was); and BI v Director of Immigration [2016] 2 HKLRD 520 (CA).

35.  Two particular principles are well established in this jurisdiction:-

(1) The effect of section 11 of the Hong Kong Bill of Rights Ordinance and the Immigration Reservation to the ICCPR is that the provisions of the Basic Law and the Hong Kong Bill of Rights cannot be invoked to enable those not having the right to enter and remain in Hong Kong to resist removal or deportation: see Ubamaka Edward Wilson v Secretary for Security [2011] 1 HKLRD 359 (CA), at paragraph 135 per Fok J (as he then was); (2012) 15 HKCFAR 743 (CFA), at paragraph 115 per Ribeiro PJ.

(2) “If the person not having the right to enter and remain in Hong Kong could not himself invoke the provisions of the Ordinance relating to his rights as a member of the family, it cannot make sense to allow other members of the family the right to invoke those provisions in relation to their rights as members of the same family. And Section 11 should not be construed so as to attribute a non-sensical intention to the legislature”: see Hai Ho-tak v Attorney General [1994] 2 HKLR 202, at 210 per Godfrey JA; see also the judgment of Mortimer JA at 207-208 and of Nazareth JA at 209 to the same effect.

These two principles were recently re-affirmed by the Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520, at paragraph 92(6) and (7).

36.  It is clear that the present application, in so far as it is based on the purported family rights of the 1^st, 2^nd and/or 3^rd applicants or the 2^nd applicant’s right of abode in Hong Kong, has no reasonable prospect of success.

(ii)   Family circumstances as relevant considerations

37.  In so far as the applicants’ case is put on the basis of their family circumstances which the Permanent Secretary was obliged, or ought, to take into account when exercising his discretion whether to rescind the Deportation Order, the law is equally clear.  In BI v Director of Immigration, ante, the Court of Appeal stated at paragraph 92(8) as follows:-

“When an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he may do so. If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration. In the discussions below, we shall further address the scope of judicial review if the Director did consider humanitarian grounds.”

38.  At paragraphs 102 to 109 of that judgment, the Court of Appeal further explained the limits of the court’s power to intervene in relation to the Director’s exercise of discretion based on humanitarian considerations (omitting various footnotes):-

“102. …Subject to what we shall say below, we regard ourselves as being bound by the observations in Lau Kong Yung as to the extent to which the courts may intervene over the Director’s exercise of discretion on humanitarian consideration. According to Lau Kong Yung, the Director does not have a duty to consider humanitarian consideration. Thus, if the Director did not take such consideration into account, the courts cannot intervene on the ground that he had failed to have regard to relevant matter in making his decision.

103. However, Lau Kong Yung did not decide what would be the position if the Director did take humanitarian consideration into account…

104. In our judgment, in cases where the Director did give regard to humanitarian considerations, the courts could intervene if there were unfairness in the process. In C v Director of Immigration, Sir Anthony Mason NPJ discussed the role of judicial review and pinpointed the rule of law as its foundation. His Lordship explained the limits of judicial review by reference to separation of power considerations and the requirement of justiciability. He also highlighted that some decisions may be reviewable for procedural fairness but not otherwise.

105. It had been explained in the long line of cases approved by the Court of Appeal in Safder Tehseen v Permanent Secretary of Security that the courts are not equipped to exercise immigration control in place of the Director. This court should take this opportunity to reiterate categorically and firmly that as a matter of Hong Kong 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.

106. Arguments in courts in cases of this nature usually concentrated on the personal and family situations of the applicants. However, in terms of immigration control, there are many socio-economic as well as security factors which the courts cannot even begin to grapple. It would also involve consideration of the long term population strategy for Hong Kong. On the facts of a particular case, it can be tempting for a judge to find the personal or family situation of an applicant deserving of sympathy and conclude that the application should be accorded with exceptional treatment. A judge succumbing to such temptation would, in effect, usurp the role of the Director in the administration of immigration control and inevitably make a decision at the risk of placing priority on the personal and family situation of an applicant over other highly relevant factors with which the court is not familiar and not in a position to assess properly. As such, it is against proposition (2) set out in [92] above.

107. In our judgment, the court should acknowledge that immigration control involves decisions of high political as well as socio-economic contents which should be accorded with a broad margin of discretion in accordance with well established principles of judicial review. In R v Immigration Appeal Tribunal ex parte Singh, Lord Bridge also accepted this proposition.

108. In light of the Appeal Committee's decision in Aguilar Elmedorial v Director of Immigration, we would not rule out completely the possibility of mounting a judicial review based on irrationality (or Wednesbury unreasonableness). However, the courts must have regard to the wide discretion of the Director in assessing the merits of such a challenge and humanitarian consideration is only relevant in the context of whether an applicant merits exceptional treatment against a policy of stringent immigration control.

109.   In cases where the Director did give regard to humanitarian consideration, it would be unlikely that the Director did not take the relevant consideration into account…  As we shall explain below, the real issue in the present appeals (as in most cases) is whether the applicants could challenge the decisions of the Director in terms of procedural fairness or alternatively Wednesbury unreasonableness.”

39.  In the specific context of a decision to make a deportation order or a decision to refuse to suspend or rescind a deportation order, it was stated by the Court of Appeal, in Safder Tehseen v Permanent Secretary for Security, CACV 167/2012 (6 June 2013), at paragraph 54, that it was well established that in considering deportation, the Permanent Secretary had no general duty to take compassionate or humanitarian factors into account, even where family ties might be affected.

40.  In Sabir Mohammed, ante, which also related to a challenge against a decision made by the Permanent Secretary not to rescind a deportation order, it was argued on behalf of the applicant that “the Permanent Secretary in considering the rescission application had a legal obligation to have had regard, and thus give significant weight, to the applicants’ purported rights to family” under (inter alia) BL 37 and HKBOR 14 and HKBOR 19 (paragraph 71).  Au J concluded, however, that the Permanent Secretary was not under any legal obligations to consider such rights in relation to the issue, rescission or suspension of a deportation order (paragraph 74). 

41.  As a matter of principle, the Permanent Secretary is under no legal obligation to take into account the family circumstances of an applicant when considering an application to rescind or suspend his deportation order.  To the extent that the Permanent Secretary decides to take into account the applicant’s family circumstances, it is generally a matter for the Permanent Secretary to decide which aspects he would take into account and how much weight he would accord to such circumstances.  The court’s supervisory jurisdiction in judicial review over the Permanent Secretary’s decision in this context is generally limited to procedural impropriety or Wednesbury unreasonableness.

42.  In the present case, it is clear that the applicants’ family circumstances were taken into account by the Permanent Secretary when he decided not to rescind the Deportation Order (see paragraphs 6 to 8, 10(b), 14, and 18 to 20 of M.7). There is, in my view, no proper basis to challenge the Decision on the grounds of procedural impropriety or Wednesbury unreasonableness.

(iii)   The 3^rd applicant’s rights under the CRC

43.  The applicants’ case based on the 3^rd applicant’s rights under the CRC can be disposed of shortly.  First, its application to Hong Kong is subject to an immigration reservation, as follows –

“The Government of the People's Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time”.

44.  The effect of this reservation is that, in applying Hong Kong’s immigration laws, the Permanent Secretary is not bound by the provisions of the CRC: see Chan To Foon v Director of Immigration [2001] 3 HKLRD 109, at 120-121 per Hartmann J (as he then was); Pagtama v Director of Immigration, HCAL 13/2014 (12 January 2016), at paragraphs 120 and 130-131 per Au J

45.  Second, the CRC has not been domesticated into local law in Hong Kong, and hence it cannot give rise to any direct rights or obligations which the Permanent Secretary is under a duty to take into account: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at paragraph 43 per Ribeiro PJ; GA v Director of Immigration (2014) 17 HKCFAR 60, at paragraphs 58, 60 and 61 per Ma CJ and paragraph 83 per Chan PJ; and Pagtama, ante, at paragraphs 121-129 per Au J.

46.  To the extent that it is argued that the Permanent Secretary was obliged to take into account the 3^rd applicant’s best interest as a child in the exercise of his discretion whether to rescind the Deportation Order, such argument is also unsound as a matter of principle: see Pagtama, ante, at paragraphs 141-149 per Au J.

(iv)   Legitimate expectation

47.  The existing authorities in Hong Kong make it clear that the doctrine of legitimate expectation is not a viable legal route to enable the applicants to rely on their family rights or family circumstances, the 3^rd applicant’s rights under the CRC, or the 2^nd applicant’s right of abode in Hong Kong to challenge the Decision: see Chan To Foon, ante, at 128-130 per Hartmann J (as he then was); Pagtama, ante, at paragraphs 142-143 per Au J.

48.  In passing, there are two other matters that I should mention.  First, in her written and oral submissions, Ms Olley referred to a number of other matters which the Permanent Secretary allegedly failed to take into account but which were not raised with the Permanent Secretary for his consideration of whether to rescind the Deportation Order and/or in the Form 86.  I do not consider that the applicants are entitled to rely on those additional matters.  As stated by Litton PJ in Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778 at 815 under the heading “Discipline of Law” –

“The limited role of the Court in exercising its supervisory responsibilities under s.21I of the High Court Ordinance must constantly be borne in mind. A crucial aspect of the rule of law in Hong Kong is that administrators exercise their functions and duties within the law. To do so, the law must be clear. Where a statute in express terms requires a decision-maker to take into account certain factors and an applicant can show that he has failed to do so, that is one ground for judicial review. Certiorari may issue, depending on the importance of the factor omitted: It may be so insignificant that the failure to take it into account could not have materially affected the decision. Otherwise, the decision may properly be impugned. But where the conditions governing the exercise of power are satisfied, to seek to impeach the decision nevertheless is a very different matter. It brings the decision-maker within the area of an abuse of power: The power is undoubtedly there, but it has been improperly exercised. If the court is to intervene, it can only do so on clearly stated grounds. That is why Order 53 r.3(2)(a) of the Rules of the High Court governing judicial review proceedings is stated in mandatory terms: An application for leave must be made by filing a notice in Form 86A containing a statement of the grounds upon which it is sought. This makes for good administration under the rule of law. If the decision-making process is vitiated by the administrator's failure to take some factor or another into account, those factors must be clearly identified, so that the next time round the decision-maker would not offend again. These are basic propositions, but failure to bear them firmly in mind led the Court of Appeal into error.”

49.  Second, in support of her arguments based on family rights or family circumstances of the applicants, the 3^rd applicant’s rights under the CRC, or legitimate expectation, Ms Olley relies substantially on a number of UK authorities, including ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10; Beoku-Betts v SSHD [2008] UKHL 39; and AM (Jamaica) v SSHD [2008] EWHC Civ 1408.  It is not with disrespect to counsel’s arguments that I do not propose to examine those authorities for, as convincingly demonstrated by Lam J (as he then was) in Li Nim Han, ante, at paragraphs 45-47 and 55-57; and Comilang v Commissioner of Registration, HCAL 28/2011 (15 June 2012), at paragraphs 93-95 and 102-113, the UK authorities were based on legislative and statutory regimes which had no application in Hong Kong.  In the local immigration context, in so far as it relates to the Director, the Security or the Permanent Secretary’s exercise of powers under the Ordinance governing entry into, stay in and departure from Hong Kong as regards persons not having the right to enter and remain in Hong Kong, the Hong Kong courts have developed its own jurisprudence in light of its special legal, geographical and practical situation.  As stated by Lam J in Comilang, at paragraph 72, “over the years the courts in Hong Kong have steadfastly maintained a uniform approach as described by Cheung J in MA and Gurung Deu Kumari and challenges to decisions of the Director based on family rights or family re-union grounds, irrespective of the forensic arguments deployed, involving the Basic Law, BoR, ICCPR, ICESCR, CRC, have consistently been rejected in view of the immigration reservations and the special circumstances of Hong Kong”.  I venture to suggest that, in future applications to challenge decisions made by Director, the Secretary or the Permanent Secretary in the aforesaid immigration context, it would be more helpful for applicants to refer the court to relevant Hong Kong authorities for the purpose of establishing the relevant applicable principles.

(v)   Risk of re-offending

50.  In respect of the matter mentioned in paragraph 31(6) above (ie, the risk of re-offending), it is clear that the Permanent Secretary had taken into account the applicants’ submission that “[t]here was no evidence showing that [the 1^st applicant] would pose any further threat to the security, law and order of Hong Kong” and the Security Bureau’s views that the 1^st applicant “is a repeated offender who does not respect the law and order of Hong Kong.  As reflected by the heavy custodial sentence of 24 months for his convictions in 2010, the presence of [the 1^st applicant] poses a genuine threat to the security of Hong Kong” (see paragraphs 10(a) and 17 of M.7).  Having regard to the offences of which the 1^st applicant was convicted in 2006 and 2010, which included non-immigration offences, it was, I consider, open to the Permanent Secretary to take such views.

(vi)   Non-refoulement claim

51.  In respect of the matter mentioned in paragraph 31(7) above (ie, the 1^st applicant’s status as an asylum claimant), as earlier mentioned, it was the 1^st applicant (through his legal representatives) who urged the Permanent Secretary to process the rescission application without waiting for the outcome of his non-refoulement claim.  It lies ill in his mouth to complain that the Permanent Secretary failed to take into account his status as an asylum claimant when making the Decision.  In any event, while the existence of an outstanding non-refoulement claim would be relevant to a decision whether to actually remove the 1^st applicant from Hong Kong pursuant to the Deportation Order, it was not relevant or material to the question of whether to rescind the Deportation Order.  This view is consistent with, and supported by, the well established principle that the existence of a CAT (or other non-refoulement) claim does not prevent the making of a removal or deportation order: see A v Director of Immigration [2008] 4 HKLRD 752, at paragraphs 20-25 per Tang VP (as he then was).  Furthermore, even a substantiated non-refoulement claim would not by itself be a ground for rescission of a deportation order.  All it means is that the person should not be removed to the place where it has been established he would face a substantial risk of death, torture, CIDTP, etc.

52.  In all, I am of the view that the applicants’ complaint that the Permanent Secretary failed to take into account relevant considerations in making the Decision, or acted irrationally, has no reasonable prospect of success.

Ground (3): discrimination

53.  The applicants’ ground of judicial review based on discrimination is set out in paragraph 62 of the Form 86, as follows:-

“… the apparent discrimination between foreign national applicants for dependant visas on the one hand and persons coming to Hong Kong under the One Way Permit system on the other. Persons subject to the latter regime do not face any eligibility criteria in relation to criminal convictions, which raise the question as to whether their family members would be subjected to the impact of deportation action in the same way as foreign nationals such as these applicants.”

54.  It is important to note that the applicants are not, in this application, seeking to challenge any decision of the Director not to grant a dependant visa to the 1^st applicant.  The applicants’ complaint of the Director’s alleged discriminatory practice in relation to granting dependant visas to foreign nationals and One-way Permit (“OWP”) holders with criminal convictions is irrelevant to their challenge of the Decision made by the Permanent Secretary not to rescind the Deportation Order.  Had the applicants wished to challenge the Director’s alleged discriminatory dependant visa policy, they ought to have properly identified it in the Form 86 as the “judgment, order, decision or other proceeding” in respect of which relief is sought.  Also, the proper respondent to such challenge would be the Director instead of the Permanent Secretary.

55.  Through the 3^rd affirmation of Tong Thi Xuan, the subject matter of the applicants’ summons dated 21 August 2017, the applicants seek leave to adduce evidence to show that the Permanent Secretary “maintains an undisclosed or even unwritten policy or practice of not issuing, or refusing to issue, deportation orders against Chinese nationals residing in mainland China who have committed criminal offences in Hong Kong regardless of the seriousness of such offences” (see paragraphs 4 and 10 of the 3^rd affirmation of Tong Thi Xuan).  It is clear from the contents of that affirmation that the reference to “Chinese nationals residing in mainland China” is a reference to OWP holders from mainland China.

56.  As I previously observed in MI and IYW, ante, at paragraph 57, even if one assumes, for the sake of argument, that:-

(1)   the Permanent Secretary has adopted a policy or practice of not issuing a deportation order against a OWP holder from mainland China who has committed a criminal offence in Hong Kong; and

(2)   the adoption of such policy amounts to an improper fettering of his delegated discretion under section 20 the Ordinance,

it cannot, in my view, sensibly be argued that the Permanent Secretary should likewise fetter his discretion in favour of other foreign nationals married to Hong Kong permanent residents in order not to discriminate against the latter group of persons.  What the law would require, instead, is that the Permanent Secretary should properly exercise his discretion in any given case, irrespective of whether or not the person whose deportation is under consideration is a OWP holder.

57.  Finally, the present challenge is not against the original Deportation Order issued by the Permanent Secretary in April 2007, but the Decision refusing to rescind the Deportation Order made on 21 April 2016.  Any challenge of the former decision by way of judicial review would now be very substantially out of time.

58.  For the above reasons, the complaint of discrimination plainly has no prospect of success.

Overall conclusion on merits

59.  None of the applicants’ proposed grounds of judicial review of the Decision is reasonably arguable, or has any reasonable prospect of success.

Extension of time would not be granted

60.  Having reached this conclusion, there would be no reason to grant any extension of time for them to apply for leave to apply for judicial review.

DISPOSITION

61.  For the forgoing reasons, I decline to grant to the applicants the extension of time sought to apply for leave to apply for judicial review, or leave to apply for judicial review, of the Decision.  I also dismiss the applicants’ summons dated 21 August 2017.

62.  On the question of costs, I make the following orders on a nisi basis:-

(1) the applicants shall pay the costs of the Permanent Secretary, including the costs of the summons dated 21 August 2017, to be taxed if not agreed; and

(2) the applicants’ own costs are to be taxed in accordance with legal aid regulations.