HASHIMI HABIB HALIM v. DIRECTOR OF IMMIGRATION

HCAL 251/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 251 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  The applicant arrived in Hong Kong on 19 October 2000 on the strength of a Bangladeshi passport and was permitted to remain as a visitor until 2 November 2000.  In between October 2000 and the present, the applicant had been for numerous times charged with criminal offences involving violence and dishonesty, ranging from offences of “administering a stupefying or overpowering drug with intent to commit an indictable offence” to “assault occasioning actual bodily harm” to “theft”.  Of these, he had been convicted over 10 times, and had been repeatedly sentenced to imprisonment.  The longest sentence he was given was for eight years in 2000 after he first arrived in Hong Kong.

2.  The Director of Immigration (“the Director”) issued a removal order against the applicant on 13 February 2007 after he had completed the 8-year sentence.

3.  However, the applicant’s Bangladeshi passport had been subsequently declared by the Bangladeshi Consulate to be invalid as that was obtained by the applicant dishonestly.  The applicant then claimed that he was born in India but sneaked into Pakistan when he was young and lived there for over 10 years.  He also said he went to Thailand, got married and had a son there.  Notwithstanding the Director’s immense efforts in making inquiries with the relevant consulates over the past 10 years or so, Bangladesh, Pakistan and Thailand have all denied recognising the applicant as their national, and India has so far indicated that she could not confirm whether the applicant is her national unless the applicant could provide any documents in support of his claim that he was born in India.  The applicant has not provided any such documents.[1]

4.  As a result, the Director had not been able to successfully remove the applicant as there was no country that would be prepared to receive him.

5.  In April 2007, the applicant for the first time claimed to the Director that he should be recognised as a stateless person under the Convention Relating to the Status of Stateless Persons 1954 (“the Convention”).  In this respect, upon the applicant’s application, in July 2010, the United Nations High Commissioner for Refugees (“the UNHCR”) in Hong Kong first issued him a certificate stating that he is a stateless person.  The certificate has been renewed by the UNHCR on a yearly basis.

6.  The Director has not made any determination as to whether the applicant is a stateless person.

7.  It is the applicant’s case that the Director’s failure to recognise him as a stateless person under the Convention results in the situation that he has no immigration or residential status in Hong Kong. He could not work over all these years and travel to Thailand to visit his family there.  He therefore could not live a proper and dignified life.

8.  On 16 December 2015, the applicant brought a leave application seeking to judicially review the Director’s failure to make a determination recognising him as a stateless person under the Convention.  In the intended judicial review, he seeks the declaration that the Director “ought to recognize the applicant as a stateless person” and “meet the certain obligations the Director is obliged to the applicant as provided in [the Convention]” so that he can travel to meet his son in Thailand and live a “dignified life”.

9.  The leave application was first heard on 14 April 2016, where the Director attended.  At that hearing, the Director’s position was that the leave application should be adjourned sine die or dismissed on the basis that the intended judicial review will serve no useful purposes or that it is in any event not reasonably arguable as a matter of law.

10.  By then, the Director had filed evidence to show that (a) he decided in the exercise of his discretion in light of the applicant’s exceptional circumstances to grant the applicant permission to remain in Hong Kong for a period of one year and an Entry Permit and Hong Kong ID card would be issued to him; (b) in the premises, the removal order was rescinded; and (c) in the meantime, the Director continued to chase the India Consulate to hold an interview with the applicant to verify his identity and nationality.

11.  On the basis of the above evidence, the court adjourned the leave application sine die with liberty to restore.

12.  By a letter dated 6 June 2017, the applicant asks the court to restore the leave application.  The Director in response by a letter dated 12 July 2017 instead asked the leave application to be dismissed or again be adjourned sine die.  The court directed this hearing to be held to determine whether to restore the leave application or to dismiss it.

13.  For the present purposes, the Director has further filed the affirmation of Au Chi Lun Allan updating the court the latest events concerning the applicant since the last adjournment.  In this affirmation, the Director has confirmed that (a) on 24 May 2016, the applicant after completing all the necessary formalities was issued an Entry Permit and permitted to remain in Hong Kong until 24 May 2017.  He was also issued a Hong Kong ID card on 7 June 2016; (b) the applicant was issued a Hong Kong Document of Identify for Visa Purposes (“the DI”) on 23 June 2016, which is a travel document;[2] (c) the applicant’s application for extension of stay made in March 2017 was approved and he is now permitted to remain in Hong Kong until 24 May 2018, and is at liberty to make further applications for extension of stay; and (d) hence, since May 2016, the applicant has been granted permission to remain in Hong Kong and is at liberty to work.

B. THIS LEAVE APPLICATION

14.  In my view, the leave application should be dismissed as the intended judicial review is not reasonably arguable and in any event the court would not exercise its discretion to grant the relief sought by the applicant.  I will explain why.

B1. The intended judicial review not reasonably arguable

15.  It is trite now that leave to apply for judicial review should be refused if the intended judicial review is not reasonably arguable with a realistic prospect of success: Po Fun Chan v Winne Cheung (2007) 10 HKCFAR 676 at paragraphs 14 - 17.

16.  In the present case, the fundamental underlying basis of the applicant’s intended judicial review is that the Director has legal obligations to determine whether he is a stateless person under the Convention and also should decide that he is a stateless person in the applicant’s circumstances.

17.  This however is incorrect.

18.  Although Hong Kong is a signatory to the Convention, the Convention has not been incorporated into our domestic legislations.  In this respect, the Court of Final Appeal has confirmed the long established dualist principle that international treaties and conventions are not self-executing and unless and until made part of the domestic law by legislation, they do not impose any rights and obligations on individual citizen.  The domestic courts have not and cannot have the competence to adjudicate or enforce the rights arising out of the international treaties: Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 42 - 42 and 84 - 85.

19.  This principle has been again reiterated by Ma CJ in GA v Director of Immigration (2014) 17 HKCFAR 60 at paragraph 58 as follows (footnotes omitted):

“58. The provisions of the international covenants and conventions referred to in art.39(1) of the Basic Law are not directly enforceable in Hong Kong by any individual unless implemented by domestic or municipal law. As Ribeiro PJ summarised in Ubamaka v Secretary for Security, ‘It has long been established under Hong Kong law (which follows English law in this respect), that international treaties are not self-executing and that, unless and until made part of our domestic law by legislation, they do not confer or impose any rights or obligations on individual citizens’. This is sometimes called the common law dualist principle and the wording of art.39(1) of the Basic Law, both in English and in Chinese, is declaratory of this. One clear example is the incorporation into domestic law of the ICCPR. It is well recognised that the HKBORO is the domestic embodiment of the ICCPR as applied to Hong Kong. One of the consequences of the principle is where an international obligation has not been made part of domestic law, then, whatever the international position may be, an individual cannot rely on the content of that international obligation. In addition, in the case of the ICESCR, at the 19th session in November-December 1998 dealing with the Substantive Issues Arising in the Implementation of the ICESCR relating to the Domestic Application of the Covenant, the Committee on Economic, Social and Cultural Rights of the Economic and Social Council of the United Nations confirmed this:

…” (emphasis added)

20.  More pertinently in relation to the Convention, the Court of Appeal in Li Jin Fei v Director of Immigration [1994] 1 HKLR 253 has also clearly concluded that, given that the Convention has not been domesticalized into our local legislations, the Director does not have any obligations to determine a statelessness claim under the Convention.

21.  In Li Jin Fei, the applicants entered Hong Kong in November 1991 as visitors on the strength of their Lesotho passports. The visitor visas (after a temporary extension) were to expire in early February 1992.  Before the expiry of the visas, the applicants applied to the Director to change the visitor visa status to “business visa” which would entitle them to stay longer in Hong Kong.  However, after these applications were made, the Director was notified that these passports were subsequently declared to be invalid and cancelled by the Lesotho government.  The Director therefore in January 1992 refused the applications (as they held no valid passports) and reminded them that they should leave Hong Kong by the expiry of the visitor visas.  The applicants brought leave applications to judicially review initially the Director’s decisions not to approve the change of status applications. However, by March 1992, the applicants were also notified that their Lesotho citizenships had also been revoked by the Lesotho government.  They then amended the applications to seek further declaratory reliefs that, on the basis that they had become stateless persons (under the Convention), the applicants be permitted to remain in Hong Kong and might not be expelled or required to leave Hong Kong save on the ground of national security or public order (as provided in the Convention).  Their judicial reviews were refused by the High Court.  Their appeals to the Court of Appeal were also dismissed.

22.  In relation to those applicants’ judicial review grounds and reliefs sought based on the claim for statelessness under the Convention, Litton JA in dismissing the appeals rejected those grounds on the basis that the Convention did not impose any obligations on the Director to determine a statelessness claim as it had not been incorporated into the local legislations.  The learned Justice of Appeal observed at p 260:1-10 as follows:

“These grounds are odd in a number of ways. First, there is nothing in the statutory scheme, under the Immigration Ordinance, that requires the Director to deal with ‘stateless persons’ in any particular way, whether they are applicants for ‘business visas’, ‘dependents’ visas’ or otherwise. Accordingly, where ground (2) asserts that the applicants are ‘stateless, according to law’ it could only have referred to some form of international law: that is, the Convention or ‘customary international law’ referred to in ground (3). But, it is axiomatic that the municipal courts of the territory do not exist for the enforcement of international obligations, incurred by the United Kingdom government on behalf of Hong Kong. Grounds (2) and (3) could not possibly have been grounds for any relief given by a judge on judicial review. Second, the notion that ‘the second decision’ of the Director ‘rendered the applicants stateless’ is so bizarre that it should have been rejected out of hand. The Director of Immigration has no responsibility for anyone’s nationality. Third, there was no ‘second decision’ at all.”

23.  The applicants in Li Jin Fei also argued that it must be incumbent on the Director to conform with the treaty obligations of Hong Kong and thus would be Wednesbury unreasonable for the Director to seek to remove the applicants when that was not permitted under the Convention.  Litton JA rejected this argument at p261:40 - 262:10 on the principal basis that:

(1) The issue of statelessness under the Convention was not justiciable in the local courts as it had not been domesticalised, and there is no legal framework within Order 53 for the determination of such issue.

(2) In any event, the Director had not ordered the applicants to leave (although he was empowered to do so under the Immigration Ordinance once the applicants had overstayed).

24.  Both Bokhary JA (as the learned NPJ then was) and Barnett J agreed with Litton JA and also expressed the view that where there was no extant removal order made against the applicants, the applicants’ judicial review based on a stateless claim could not succeed.[3]

25.  In the present case, in light of the above-mentioned Court of Final Appeal and Court of Appeal authorities (which are binding on this court) and the fact that there is no extant removal order made against the applicant, it is clear to me that the applicant does not have any standalone enforceable legal rights to claim against the Director for statelessness under the Convention and the court could not determine and grant the reliefs as sought.  The intended judicial review therefore has no merits and leave should not be granted.

26.  The applicant however seeks to raise a number of contentions to say why his claim in the intended judicial review is reasonably arguable.  I will deal with them as follows.

27.  First, he says the Convention has in fact been incorporated into our Hong Kong Bill of Rights Ordinance (Cap 383) and thus enforceable.

28.  There is nothing in it.  The Hong Kong Bill of Rights is to incorporate the International Covenant on Civil and Political Rights (“the ICCPR”) in Hong Kong.  It has nothing to do with the Convention, and in particular the determination of the status of statelessness pertinent under the Convention.

29.  Second, the applicant says Bohkary JA observed in Li Jin Fei that he would “say nothing on the full range of implications of international obligations on municipal administrative decision-making”.  Hence, the applicant continues, it is at least arguable that even if the Convention has not been domesticalised into local legislations, he could still seek to enforce those obligations as against the Director.

30.  There are no merits in this contention.  The Court of Final Appeal has clearly reiterated the dualist principle under the common law that international conventions do not confer or impose any rights or obligations on individual citizens unless and until they have been made part of the domestic law.  The Convention has not been so made part of our domestic legislations.  Further, since the Director at present is not seeking to remove the applicant, it is also clear that he could not argue that the Director would be acting Wednesbury unreasonably in acting contrary to these international obligations under the Convention by seeking to remove him allegedly as a stateless person.

31.  Finally, the applicant somehow complains that the Director has not explained what were the “exceptional circumstances” the Director said to have regarded to in his recent decisions to grant him a temporary permission to remain and work in Hong Kong.  I think what the applicant seeks to say is that the Director effectively must have accepted that he is a stateless person in treating that as an exceptional circumstance since that has been his claimed position since 2007 and nothing has changed so far.  As such, it would be Wednesbury unreasonable for the Director still not to have fully accepted his claim and granted him “full rights” as a stateless person under the Convention.

32.  I would also reject this argument.  The Director is entrusted with the responsibilities and wide discretion under the Immigration Ordinance (Cap 115) and Article 154 of the Basic Law to decide on immigration control matters in Hong Kong, including the discretion to decide whether to grant permission to a foreigner to enter and remain in Hong Kong with or without conditions.  The court must give the Director a wide margin of discretion in this respect and will rarely interfere this exercise of discretion on Wednesbury ground unless it is clear.  Cf: BI v Director of Immigration [2016] 2 HKLRD 520 at paragraphs 105 - 108.

33.  In the present case, in my view, the applicant has not raised anything even to start arguing that the Director’s discretion to grant him a temporary right to remain and work in Hong Kong (which is something to the applicant’s benefit) is Wednesbury unreasonable.  In my view, it is obvious that in making this decision, it is reasonable for the Director to take into account, among others, (a) the length of time the applicant has by now been in Hong Kong and (b) the likelihood that the India Consulate would interview the applicant in the near future to determine his nationality to consider whether the circumstances have by now become so exceptional that he should grant the applicant temporary permission to remain in Hong Kong and to work on reviewable basis.  This is particularly so when viewed in the context that the applicant does not have an enforceable legal right to oblige the Director to determine the applicant’s statelessness claim.

34.  For all the above reasons, I reject all the applicant’s contentions that the intended judicial review is reasonably arguable.

C. CONCLUSION

35.  In the premises, I would refuse to grant leave to the applicant to apply for judicial review.

36.  The Director has fairly not asked for costs.  I therefore would make no order as to costs in this application.

37.  Lastly, I would like to thank Ms Chow for her succinct and helpful assistance in this matter.