SAFDER TEHSEEN v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

CACV 167/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 167 OF 2012

(ON APPEAL FROM HCAL NO. 75 OF 2012)

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JUDGMENT

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Hon Kwan JA (giving the Judgment of the Court):

1.  On 6 June 2013, we dismissed the applicant’s appeal against the decision of Fung J in refusing him leave to apply for judicial review. It was acknowledged before us that the original grounds for judicial review argued before the judge are plainly not arguable and are misconceived. An application was made before us to amend Form 86 to raise three new grounds in substitution, see §3 of our judgment (“the Judgment”). As we took the view that none of the three new grounds are reasonably arguable, we refused leave to amend the form and dismissed the appeal as leave to apply for judicial review must be refused.

2.  The applicant has applied for leave to appeal to the Court of Final Appeal, on the ground that the intended appeal involves a question of great general or public importance.  He also relies on the “or otherwise” limb.

3.  These questions are raised in his Notice of intended application for leave to appeal:

“1. Whether on a proper application of the threshold test for an application for leave to judicial review under O. 53, r. 3 of the Rules of the High Court, Cap. 4A (“RHC”), a Court should not infer from the materials before it, possible explanations for a decision that a decision maker may or may not rely upon if evidence is later given about the decision-making process, but should, instead, grant leave to permit the applicant to commence proceedings under O. 53 r. 5(5); and

2. If Question 1 is answered in the affirmative, whether the Court of Appeal erred in refusing to grant leave to judicial review by inferring from the materials before it that the Secretary definitely ascertained and then took into account the Applicant’s relationship with his step-children and the consequences of deportation on that relationship.”

4.  Mr Earl Deng served two submissions in support of this application citing no less than 18 authorities.

5.  Stripped of all technicalities, the propositions advanced by Mr Deng in the proposed appeal may be stated as follows.

6.  At the stage of seeking leave to apply for judicial review, when not the entire evidence from the putative respondent is before the court, such as an affidavit from the decision-maker to explain the decision-making process, generally the court should not draw inference from the materials before it as to what the decision-maker has or has not taken into account.  Leave to apply for judicial review should be granted, otherwise the threshold test of being reasonably arguable would be raised so high that it would effectively deny an applicant access to the court.

7.  The respondent should then file evidence in opposition.  In an appropriate case, the respondent could apply to set aside the granting of leave under Order 53 rule 13.  Otherwise, the application for judicial review should proceed to a hearing and it is only then that the court is to inquire into the decision-making process and undertake forensic analysis of the evidence.

8.  These contentions were not raised on appeal.

9.  Mr Deng’s submission is that this court is wrong to hold on the evidence that the Permanent Secretary for Security, in accepting the recommendation of the Director of Immigration in Internal Minutes M4 and making a decision to refuse to suspend the deportation order against the applicant, did not overlook any relevant consideration (§§52 to 57 of the Judgment).  He made the point that the Secretary has not yet made any affidavit deposing to his decision-making process.  He argued that the statement in Internal Minutes M4 §14 that the Director has considered the representations made by the applicant, his wife and his legal representative is just a “general formulaic answer”.

10.  We are not minded to exercise our discretion to grant leave to appeal on the two questions raised by the applicant.  We agree with Mr Abraham Chan that the applicant is advancing a fact-specific complaint dressed up as a general question of principle.  We do not think the courts are in need of general guidance how evidential materials should be considered and analysed in the context of a leave application for judicial review.  What the court can or cannot properly infer from the materials placed before it at the leave stage must depend on the materials in question and the context of the particular case.  Mr Deng acknowledged in his submission he is not proposing that the court should suspend common sense or its judicial function at the stage of the leave application for judicial review.

11.  We do not see any basis to take the exceptional course of granting leave to appeal on the “or otherwise” limb.

12.  For the above reasons, we dismiss the application for leave to appeal.  We make an order nisi that the applicant is to pay the respondents’ costs of this application.