HUSSAIN MAZHAR v. DIRECTOR OF IMMIGRATION

HCAL 311/2021

[2021] HKCFI 2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 311 OF 2021

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DECISION

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of an alleged decision of the Director of Immigration (“the Director”)  made on 13 December 2019.  The Form 86 dated 9 March 2021 does not identify the nature of the decision sought to be challenged, the relief sought or the grounds on which relief is sought.

2.  It transpires from Government Counsel’s Initial Response dated 30 April 2021 that the Director did not in fact make any relevant decision in relation to the Applicant on 13 December 2019.  Instead, the Permanent Secretary for Security (“the Permanent Secretary”)  made a deportation order (“the Deportation Order”)  against the Applicant on 13 December 2019.  In Daly & Associates’ Reply to the Initial Response dated 2 July 2021 (“the Reply”), it was confirmed that the Putative Respondent should be the Permanent Secretary instead of the Director.

BASIC FACTS

3.  The Applicant is a Pakistani national born in Pakistan on 2 August 1992.  On 11 October 2017, he married a Hong Kong permanent resident (“W”)  in Pakistan.

4.  The Applicant submitted an application for entry for residence as W’s dependant in Hong Kong on 1 November 2017.  The application was approved on 12 April 2018, and the Applicant was issued a dependant visa dated 16 April 2018.  On 4 May 2018, the Applicant entered Hong Kong on the strength of his Pakistani passport and the dependant visa, and was permitted to stay in Hong Kong on dependant status with limit of stay until 4 May 2019.

5.  On 26 December 2018, the Applicant was arrested by the Police for the suspected offence of indecent assault.  On 27 June 2019, the Applicant was convicted of the said offence after trial, and was sentenced to 9 months’ imprisonment.  On 14 November 2019, the Applicant’s appeal against conviction and sentence was dismissed by the Court of First Instance (HCMA 331/2019).  As can be seen from the Reasons for Judgment of Deputy High Court Judge Tam dated 20 December 2019, the victim of the indecent assault was W’s daughter (ie the Applicant’s step-daughter). On 12 December 2019, the Applicant filed an application for a certificate (“the Section 32 Certificate”)  under s 32(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for the purpose of an intended appeal to the Court of Final Appeal against the dismissal of his appeal against conviction and sentence. That application was refused by the Court of First Instance on 9 April 2020.

6.  In the meantime, on 22 July 2019, the Applicant, whilst in prison, was informed that the Director intended to apply for a deportation order against him.  In his Grounds Against Deportation dated 22 July 2019, the Applicant objected to the intended deportation on the basis that he wished to live with his wife in Hong Kong.  By a letter dated 14 August 2019, W submitted a written representation to the Director requesting, inter alia, that the Applicant should not be deported.

7.  On 3 December 2019, the Director made an application (“the DO Application”)  to the Secretary for Security for a deportation order against the Applicant.  Attached to the DO Application was an “Attachment” which set out, amongst other matters, the Applicant’s personal details, the “Brief Facts of the Case” in respect of the Applicant’s criminal conviction, the Applicant’s family background, the Applicant and W’s representations, and a section titled “Remarks/Mitigating Factors” containing the Director’s views on the intended deportation of the Applicant.

8.  On 13 December 2019, the Permanent Secretary, acting upon the delegated authority of the Chief Executive, made the Deportation Order pursuant to s 20(1)(a)  of the Immigration Ordinance, Cap 115 (“the Ordinance”), on the basis that the Applicant was not a Hong Kong permanent resident and had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years.  The Security Bureau’s deliberation on whether to make the Deportation Order can be seen from the Internal Minutes (M.1), which it is not necessary to set out in this decision save the following:

“Decision

11. It is noted that Mr Hussain has been living in Hong Kong since 2018. Mr Hussain and his wife’s representations regarding the intended deportation has been considered. The deportation order, if made, may deprive Mr Hussain of his proximity to his wife in Hong Kong. However, she is free to visit or reunite with him elsewhere outside Hong Kong if she wishes to do so. In the meantime, Mr Hussain, being an able-bodied adult who was brought up in Pakistan, should not have any undue hardship in re-establishing himself in his home country.

12. Given the seriousness of his criminal conviction, it will not be in the public interest to allow Mr Hussain to remain in or come to Hong Kong again.  Having taken into account all the circumstances of the case, I recommend that Mr Hussain should be deported for life.”

9.  On 24 December 2019, upon the Applicant’s discharge from prison, he was detained in Castle Peak Bay Immigration Centre (“CIC”).

10.  On 17 April 2020, the Applicant applied for a writ of habeas corpus for his release from detention in HCAL 720/2020.  On 29 April 2020, this court dismissed his application for a writ of habeas corpus.  In the court’s decision, it was stated that there was, at that time, no legal impediment to the Applicant’s removal from Hong Kong (§22).

11.  That changed because on 5 May 2020, the Applicant made a non-refoulement claim.  On 29 June 2020, the Director rejected the Applicant’s non-refoulement claim.  On 29 September 2020, the TCAB rejected the Applicant’s appeal against the Director’s decision.  On 30 September 2020, the Applicant made an application for leave to apply for judicial review of the Board’s decision in HCAL 1976/2020.

12.  On 4 January 2021, the Applicant was released from detention on recognizance.

13.  On 12 January 2021, the Applicant submitted a fresh application for entry for residence to join W as her dependant in Hong Kong.  On 24 February 2021, the Director informed W of s 20(5)  of the Ordinance, and that the Applicant’s application for entry for residence could not be considered as he was subject to the Deportation Order which was in force.

14.  As earlier mentioned, on 9 March 2021, the Applicant made the present application for leave to apply for judicial review of the Deportation Order.

15.  On 25 March 2021, the Court of First Instance dismissed the Applicant’s application for leave to apply for judicial review in HCAL 1976/2020.

DISCUSSION

16.  The Applicant has substantially delayed in making the present application.  The Deportation Order was made on 13 December 2019, but the Form 86 was not filed until 9 March 2021.  Where there has been delay in applying for leave to apply for judicial review, the court’s approach in deciding whether to grant an extension of time to the applicant to make the application is well established (see AW v Director of Immigration [2016] 2 HKC 393).  The court should take into account the following non-exhaustive list of factors: (i)  length of delay, (ii)  explanation for the delay, (iii)  merits of the substantive application, (iv)  prejudice, and (v)  whether any questions of general public importance are raised in the application.

17.  The delay here is about 12 months, which is a very substantial one.  In the Form 86 dated 9 March 2021, the Applicant stated that he “did not know about the judicial review procedure”.  The allegation that he did not know about the judicial review procedure cannot be a good explanation for the entire delay.  He made one such application in HCAL 1976/2020 in September 2020.  In the Reply, Daly & Associates referred to the fact that the Applicant was imprisoned up until 24 December 2019, and between 24 December 2019 and 4 January 2021 he was detained in CIC. However, the Applicant’s imprisonment and subsequent detention in CIC did not prevent him from appealing against his conviction/sentence to the Court of First Instance in November 2019, or applying for the Section 32 Certificate in December 2019, or applying for a writ of habeas corpus in HCAL 720/2020 in April 2020, or making a non-refoulement claim in May 2020, or making an application for judicial review in HCAL 1976/2020 in September 2020.  There is, in my view, no good or reasonable explanation for the Applicant’s delay in making the present application.

18.  The Applicant’s delay is also detrimental to good administration, in that it has impeded the process of his removal from Hong Kong.

19.  As for the merits of the intended application for judicial review, the Applicant has failed to identify any grounds of judicial review in the Form 86, as required by Order 53, r 3(2)(a)(iii)  of the Rules of the High Court, Cap 4A.  The Applicant made an affirmation on 9 March 2021 in support of the application.  In that affirmation, the Applicant said that W could not adapt to the culture or live in Pakistan, and alleged that the Deportation Order was not reasonable or fair.  The affirmation plainly failed to disclose any viable grounds of judicial review.

20.  On behalf of the Applicant, Daly & Associates have put forward various grounds in support of the application for leave to apply for judicial review in the Reply.

21.  First, it is argued that, in making the Deportation Order, the Permanent Secretary committed the mistake identified in Singh v The Secretary for Security (1996)  6 HKPLR 440, namely, that he merely considered the “Brief Facts of the Case” as summarized in the Director’s “Application for Deportation Order” dated 3 December 2019, but not the facts which the court had found proved.  In that case, Keith J (as he then was)  said that it was not good practice for the Secretary to be supplied with a summary of facts which the prosecution proposed to prove, rather than the document setting out the facts which the judge had found proved, because the Secretary, in considering the nature and gravity of the offences for which the potential deportee was sentenced to terms of imprisonment, should have focused on the facts found rather than the evidence called to prove those facts.  As can be seen from the DO Application and the Attachment, the Director did not in fact put before the Permanent Secretary the summary of facts prepared by the prosecution in relation to the Applicant’s criminal case.  This argument of Daly & Associates is based on a false premise.  In any event, I do not consider that Keith J was intending to lay down any inflexible rule about the materials which may be considered by the Permanent Secretary when considering whether to make a deportation order in any case.  The important consideration, in any given case, is whether the facts put before the Permanent Secretary are inaccurate or misleading, or contain any significant omission.  It has not been suggested that the brief summary of facts contained in the Attachment suffers from such defects.  Neither did the Applicant put before the Permanent Secretary any particular mitigating circumstances in relation to his offence.  None has been suggested in the present application.

22.  Second, it is argued that the Permanent Secretary should have applied the Singh principles by considering not only the hardship that deportation would cause the Applicant and innocent third parties, but also the likelihood of the Applicant committing criminal offences in future.  As held by Hartmann J (as he then was)  in Weerachon Sae-Ieo v Secretary for Secretary [2003] 2 HKLRD 519, the legislature has defined criminal conduct of sufficient seriousness to merit deportation under s 20(1)(a)  of the Ordinance, and the question for the Permanent Secretary is whether Hong Kong’s best interests justify an order for deportation being made in any given case.  The Permanent Secretary is entitled to take into account a wide range of matters in making his decision.  It is primarily a matter for him to decide whether any, and if so, what weight should be given to the likelihood of a proposed deportee committing criminal offences in future.  The court should not intervene in the Permanent Secretary’s decision unless it is irrational in the public law sense, or there has been procedural unfairness in the decision-making process.  I do not consider the Permanent Secretary’s decision to be irrational, or there has been any procedural unfairness in this case.

23.  Third, in so far as reliance is sought to be placed on the fact that the Applicant has a wife and been living with a family in Hong Kong, or on other humanitarian grounds (including the suggestion that W cannot travel abroad or live in Pakistan), it is well established that the Permanent Secretary has no duty to consider those matters, and even if he should do so, the weight (if any)  to be given on them is a matter for the Permanent Secretary, subject to irrationality or procedural impropriety (see Comilang Milagros Tecson v Director of Immigration [2019] HKCFA 10; BI v Director of Immigration [2016] 2 HKLRD 520).

24.  Lastly, it is argued that there is differential treatment in relation to the making of deportation orders between (a)  foreign nationals with a criminal record in Hong Kong, and (b)  persons holding One-Way Permit coming from the Mainland also with a criminal record in Hong Kong. The Applicant has not produced any evidence of the alleged differential treatment.  In any event, this argument has already rejected by the Court of Appeal in MI & IYW v Permanent Secretary for Security [2018] HKCA 419, at §§66-71, which is binding on this court.

25.  In all, I do not consider the proposed grounds of judicial review raised by Daly & Associates in the Reply to be reasonably arguable, or have a realistic prospect of success.

26.  In any event, those grounds, even if reasonably arguable, are not strong.  None of them raised any issue of general or public importance.  With the exception of the ground based on discrimination, all the other grounds arise out of the specific facts and circumstances of this case, while the discrimination ground has already been rejected by the Court of Appeal.  Having regard to the substantial delay in making the present application, the absence of any good explanation for the delay, and the detriment to good administration as a result of the delay, I would not be prepared to exercise my discretion to grant an extension of time to the Applicant to apply for leave to apply for judicial review in this case.

DISPOSITION

27.  The application for leave to apply for judicial review is dismissed.

28.  On the question of costs, there are plainly no merits in the intended application for judicial review.  Also, having regard to the whole history of this matter, I consider it to be clear that the present application is just an attempt by the Applicant to delay his removal from Hong Kong.  I therefore make an order that the Applicant do pay the costs of the Putative Respondent, to be taxed if not agreed.