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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Hon Kwan JA:

The appeal and new grounds for judicial review

1.  This is an appeal against the refusal of leave to apply for judicial review.  The decision was made by Fung J on 19 July 2012.  He rejected the application for leave for judicial review against a deportation order made by the Permanent Secretary for Security (“the Secretary”) against the applicant on 25 April 2005 (“the Deportation Order”) and the decision of the Secretary on 9 May 2012 refusing to exercise his powers to suspend or rescind the Deportation Order (“the Enforcement Order”) and for habeas corpus.

2.  In this appeal, the applicant, now represented by Mr Dykes, SC and Mr Earl Deng, seeks leave to rely on an amended notice of application for leave to apply for judicial review (Form 86) dated 21 April 2013.  It is acknowledged that the original grounds for judicial review argued before Fung J, which were based on the applicant’s homemade notice of application, are “plainly not arguable and misconceived”.

3.  In the amended notice, apart from challenging the Deportation Order and the Enforcement Order, the applicant also seeks to challenge the constitutionality of Schedule 1, para 3(2) of the Immigration Ordinance, Cap 115 (“IO”) and these three new grounds are put forward in substitution as the grounds for judicial review:

 (1) The Director of Immigration (“the Director”) and the Secretary were put on notice that in a document addressed by the applicant to the Director dated 29 March 2005 under the subject of “Ground against Deportation”, the applicant had asserted that he was a Hong Kong resident for eight years and did not wish to leave Hong Kong.  They did not deal with the applicant fairly in that they did not clarify and inquire with him as regards his intentions of taking Hong Kong as his place of permanent residence or to assist him to verify his eligibility for permanent resident status.  Although the applicant was sentenced to imprisonment when he was convicted by the District Court on 16 March 2005, which was 13 days before he sent the aforesaid document to the Director, this period of imprisonment of 13 days should be regarded as de minimis and did not break the continuity of his ordinary residence in Hong Kong immediately before he applied in effect on 29 March 2005 for verification of his eligibility for permanent resident status.

 (2) Schedule 1, para 3(2) of the IO is inconsistent with Article 24(2)(4) of the Basic Law and is unconstitutional in that it imposes superfluous conditions for a person who has met all the constitutional requirements to enjoy both right of abode and permanent residency in Hong Kong, the conditions being the need to apply first to the Director to enjoy a constitutional right, and for the application to be approved before such a constitutional right can be enjoyed.

 (3) The Enforcement Order was irrational in the public law sense, in that the Secretary failed to consider the situation of the applicant’s wife in the round as opposed to a close focus on the desirability or undesirability of the applicant’s continued presence in Hong Kong.  The Secretary failed to take into account or accord sufficient weight to a relevant consideration, namely, that the applicant’s wife and her children cannot be expected to live in or travel often to Pakistan.

The background facts

4.  I will take the relevant background facts from the amended Form 86.

5.  The applicant is a national of Pakistan.  He came to Hong Kong as a visitor on 16 May 1997, when he was 15 years old.  On 13 June 1997, he was granted conditional leave to remain until June 2002 as a dependant of his father, who was a permanent resident and has lived in Hong Kong for over 35 years.  His leave to remain was extended to 16 June 2005.  At the time he was convicted and sentenced to imprisonment on 16 March 2005, he was in continuous residence in Hong Kong for seven years and ten months.

6.  On 1 September 2004, he was arrested and charged with murder.  After investigation, the murder charge was dropped and replaced by a charge of conspiracy to steal the property of the deceased.  He pleaded guilty to the amended charge and was convicted and sentenced by the District Court on 16 March 2005 to seven months’ imprisonment.  According to the summary of facts admitted, the applicant had no knowledge of the kidnap and murder of the deceased.  He was provided the credit cards of the deceased and the personal identification numbers by his friends who asked him to make cash withdrawals with the cards at automatic teller machines amounting to $138,000.  He gave the money to his friends and was given $3,220 as reward.  He did not know about the kidnap of the victim until much later.

7.  As the applicant had been remanded in custody from 1 September 2004, his due date for release from prison was 2 April 2005.

8.  On 22 March 2005, whilst he was serving his prison sentence, the Director served on him a notice of consideration of deportation.

9.  On 29 March 2005, he sent the document headed “Ground against Deportation” to the Director in which he made these statements: he has been living in Hong Kong for about eight years; his father is a Hong Kong resident for about 35 years and his two elder brothers are Hong Kong residents for 15 and 13 years respectively; he asserted that his family is in Hong Kong and he is a Hong Kong resident, therefore he does not wish to leave Hong Kong; the persons who committed the murder are dangerous persons with connections in Pakistan, they knew he was the eye witness against them and had threatened his mother in Pakistan they would kill him if he should return, his life would be endangered as the law enforcement authorities there would not be able to protect him.

10.  On 25 April 2005, the Director recommended, and the Secretary issued the Deportation Order against the applicant.  According to Internal Minutes M1 dated 22 April 2005, the Director was aware that the applicant “prima facie, … had already resided in Hong Kong for a continuous period of not less than seven years prior to his present offence, arrest and conviction”, and noted that he “has never applied for verification of eligibility for a Hong Kong permanent identity card”.  It was stated that in making the recommendation for deportation, the Director has taken into account the representations put forth by the applicant, his father and brothers, his family ties in Hong Kong and Pakistan, and the possible hardship caused to the applicant and his family.  The Director considered that the offence committed by the applicant is serious in nature and that it will not be in the public interest to allow him to remain in Hong Kong.

11.  As it was treated that the applicant had on 29 March 2005 made a claim to the Director under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), the execution of the Deportation Order was withheld pending the assessment of the CAT claim.

12.  The applicant applied for legal aid to challenge the Deportation Order and was refused in June 2005.  In the course of his appeal against the refusal of legal aid and on the advice of counsel, the Director of Legal Aid wrote to the Director in December 2005 to enquire if the applicant had made an application for verification of his permanent status prior to his conviction on 16 March 2005.

13.  In the Director’s reply of 3 January 2006, it was stated that the applicant had not made any application for verification of eligibility for permanent identity card (“VEPIC”) and that having regard to Schedule 1, para 3(2) of the IO, he does not have the status of a permanent resident in Hong Kong until he has applied to the Director and the application has been approved by the Director.

14.  On 10 January 2008, the applicant’s CAT claim was refused.  He petitioned against this refusal and his petition was refused on 29 July 2008.  There was a re-hearing of his fresh CAT claim due to the decision in FB v Director of Immigration [2009] 2 HKLRD 346.  The fresh claim was dismissed on 8 February 2012.

15.  On 29 December 2009, pending the re-consideration of his CAT claim, the applicant applied for the Deportation Order to be suspended or rescinded.  On 13 April 2010, he was informed that his application would be deferred pending the determination of his fresh CAT claim.

16.  On 22 November 2011, while the applicant was on recognisance, he was fined $5,000 after pleading guilty to the offence of dealing with dutiable commodities.

17.  On 13 January 2012, the applicant married a Ms Hung who is a Hong Kong permanent resident and the mother of two children from a previous relationship, aged nine and five.

18.  After the fresh CAT claim was dismissed, on 9 May 2012, the Secretary made the decision on the Enforcement Order.  In Internal Minutes M4 dated 9 May 2012, which set out the Director’s recommendation to the Secretary to reject the applicant’s request to suspend or rescind the Deportation Order, it was again noted that the applicant had never submitted any VEPIC application before his imprisonment in 2005.  The Minutes set out the family background of the applicant since his marriage, the representations put forward by the applicant, his wife and his legal representatives with the relevant documents annexed, the comments from the Commissioner of Police, the comments from the Director and the comments from the Department of Justice.

19.  On 14 June 2012, the applicant applied for leave for judicial review against the Deportation Order and the Enforcement Order and for habeas corpus.  Fung J refused leave on 19 July 2012.

If the new grounds may be relied on

20.  Mr Abraham Chan, who appeared for the Secretary and the Director, the putative respondents herein, took the point that the new case advanced in this appeal cannot properly be entertained.

21.  He submitted firstly that the applicant is relying on entirely different legal grounds of challenge to those raised before Fung J, so this is in substance a completely new legal challenge to the impugned decisions of the Secretary.  Hence, the proposed new challenge is grossly out of time for both the Deportation Order (in April 2005) and the Enforcement Order (in May 2012).  The courts have emphasised the importance of considerations of finality in applications for extension of time for an appeal, and these principles apply equally to an application to extend time to apply for judicial review, so nothing short of exceptional circumstances would justify an extension of time and a departure from the principle of finality.

22.  Secondly, even if the court were to treat this not as a wholly new application for leave to apply for judicial review but as a case of amendment, Mr Chan submitted that after the Civil Justice Reform, a late application to amend a Form 86 would face a stringent threshold and cogent reasons must be shown for amendment to be allowed.  He argued that there are no discernible reasons in support of any such application for amendment.

23.  Mr Chan reminded us of the observations of Litton NPJ in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paras 49 to 52, that when the Court of Appeal allowed an applicant to initiate a new case by giving leave to amend Form 86A, the appeal court had bypassed the first instance leave stage of the proceedings, it was in effect exercising an original jurisdiction on the new material before it and was not in fact exercising its appellate jurisdiction.

24.  In relation to an appeal, the Court of Appeal shall have all the powers and duties as to amendment of the Court of First Instance (Rules of the High Court, Order 59 rule 10(1)), which in this instance, would empower the court to give leave to amend Form 86, “whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as the Court thinks fit” (Order 53 rule 3(6)).

25.  We undoubtedly have power to give leave to amend Form 86, even by “specifying different grounds”, as in the present case.  But in view of the observations of Litton NPJ, this is a power that should be exercised cautiously and in truly worthwhile situations.

26.  The application for leave before Fung J proceeded on the homemade grounds filed on 14 June 2012 by the applicant, notwithstanding he was legally represented at the hearing in mid July 2012.  The applicant did challenge the Deportation Order and the Enforcement Order, albeit not the constitutionality of Schedule 1, para 3(2) of the IO.  The application for leave against the Enforcement Order was made within time.  Although the application to challenge the Deportation Order was out of time, Fung J accepted the submission of the applicant’s former counsel there was good reason why the application was not brought earlier because the execution of the Deportation Order was postponed until after the CAT decision and proceeded to hear the application on its merits.  I think Fung J is correct in allowing the applicant to challenge the Deportation Order notwithstanding he was out of time.

27.  I do not agree with Mr Chan there are no discernible reasons for the amendments.  In the light of the reply of the Director dated 3 January 2006 to the enquiries of the Director of Legal Aid, it is perhaps understandable that the new grounds, being the applicant’s eligibility for permanent status, its verification, and the arguments concerning a de minimis period of non-residency, were not pursued.

28.  I propose to consider the new grounds to see if they are reasonably arguable.  This is the same threshold test the applicant would have to satisfy for leave to apply for judicial review, namely, that his grounds enjoy realistic prospects of success (Po Fun Chan v Winnie Cheung at para 15).  If I am satisfied the new grounds are reasonably arguable, I would give leave to amend Form 86.  It would follow that leave for judicial review would be granted and this appeal would be allowed.

The legal context

29.  Before I turn to consider the grounds of challenge, I will first set out the relevant legal context.

30.  Article 24 of the Basic Law provides, inter alia, as follows:

“Residents of the Hong Kong Special Administrative Region (“Hong Kong residents”) shall include permanent resident and non-permanent residents.

The permanent residents of the Hong Kong Special Administrative Region shall be: …

(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region; …

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.”

31.  The relevant provisions in the IO are as follows:

Schedule 1, para 2 provides, inter alia, that:

“A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region - …

(d) A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region …”

Schedule 1, para 3(2) provides that:

“A person claiming to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) does not have the status of a permanent resident in the Hong Kong Special Administrative Region until he has applied to the Director and the application has been approved by the Director.”

Schedule 1, para 1(4) provides, inter alia, that:

“For the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years - …

(b) for a person under paragraph 2(d), before or after the establishment of the Hong Kong Special Administrative Region but immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region.”

Section 2(4) of the IO provides, inter alia, that:

“For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong - …

(b) during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court.”

32.  It was held by the Court of Final Appeal in Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 at para 49 that Article 24(2)(4) of the Basic Law requires non-Chinese persons to satisfy three conditions if they are to qualify for permanent resident status.  They must:

 (1) have entered Hong Kong with valid travel documents (“the Entry Requirement”);

 (2) have ordinarily resided in Hong Kong for a continuous period of not less than seven years (“the Seven Years Requirement”); and

 (3) have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region (“the Permanence Requirement”).

33.  In Fateh Muhammad v Commissioner of Registration & Anr (2001) 4 HKCFAR 278 at 284G to 285F, the Court of Final Appeal held that on a purposive construction of Article 24(2)(4) of the Basic Law, the Seven Years Requirement must come immediately before the time when an application for Hong Kong permanent resident status is made in reliance on those seven continuous years.  This is reflected in Schedule 1, para 1(4)(b) of the IO (see Prem Singh, supra at para 59).

34.  I turn to the three new grounds of challenge.

The first ground

35.  In the amended Form 86, it was contended that the applicant had, on 29 March 2005, made a “constructive claim” for verification of his permanent resident status.  It would appear from Internal Minutes M1 and M4 that the Director’s recommendations and the Secretary’s Deportation and Enforcement Orders were made on the basis that there was no ‘official’ VEPIC application submitted by the applicant.

36.  Mr Dykes submitted that the Director has a duty to act fairly in his capacity as the Registrar of Persons, when put on notice that the applicant has been in continuous residence in Hong Kong for seven years and has indicated that he takes Hong Kong as his place of permanent residence, and that this duty would require the Director to (i) clarify and inquire with the applicant as regards his intentions of taking Hong Kong as his place of permanent residence, and/or (ii) to assist the applicant to verify his eligibility for permanent resident status, before the Director could lawfully issue a deportation order. In support of this, counsel cited Somporn Yoothip v Secretary for Security & Anr, CACV 276/2006, 22 June 2007, paras 21 and 23; Abayomi Bamidele Fayomi v Secretary for Security & Anr, CACV 6/2010, 15 April 2013, para 19; and Asif Ali v Director of Immigration & Anr [2011] 5 HKC 8 at paras 48 to 49.

37.  For present purpose, it is unnecessary to form a view whether the document submitted by the applicant to the Director dated 29 March 2005 was a claim for permanent resident status.  Nor is it necessary to decide the point whether it is reasonably arguable that in the present circumstances, the Director was in breach of the duty to act fairly towards the applicant in the manner as alleged.

38.  Assuming, without deciding, that the duty to act fairly was breached, the crucial question which arises next is whether there was prejudice to the applicant as a result.  This is where the applicant’s difficulty lies.

39.  Mr Chan submitted there could be no real prejudice, as the applicant clearly could not have met the Seven Years Requirement as on 29 March 2005, the earliest time when he might be regarded as making a claim for permanent resident status.  This was 13 days after he was convicted and sentenced to imprisonment.  The seven years continuous ordinary residence had been broken by the prison term on 16 March 2005.

40.  The question is whether the de minimis principle would save the applicant.  It is not in dispute that for the purpose of section 2(4)(b) of the IO, of the seven-month prison term, only 17 days of which (from 16 March 2005 to 2 April 2005) would be regarded as a period of imprisonment and shall not be treated as ordinary residence in Hong Kong (Asif Ali v Director of Immigration & Anr, FACV17/2011, 25 March 2013, paras 9, 10 and 40).

41.  Mr Dykes argued this raises a factual issue of whether the circumstances of the applicant would amount to a de minimis period of non-residence (that there was a significant degree of continuity in his residence in Hong Kong prior to his conviction on 16 March 2005, that even when he was serving his sentence he nevertheless regarded himself as residing in Hong Kong as made manifest when he declared in the “Ground against Deportation” on 29 March 2005 that he regarded himself as a Hong Kong resident), that this matter should be investigated and it cannot be said at this stage of the proceedings to have no reasonable prospects of success.

42.  The difficulty with this submission lies in the two judgments of the Court of Final Appeal in Prem Singh and Asif Ali.

43.  In Prem Singh, Ribeiro PJ (with whose judgment the majority agreed) addressed the de minimis approach (which he held to apply in this situation) in the context of a two-week period of imprisonment.  He held in para 75 that the two week period was not de minimis, rejecting the submission that this brought about a trivial interruption and represented a small fraction of the seven-year qualifying period.  He stated as follows in paras 75 and 76:

“… the exclusion of periods of imprisonment from the ordinary and natural meaning of the words “ordinary residence” in BL art. 24(2)(4) does not depend on the duration of such periods being substantial or on their amounting to a substantial fraction of the seven year qualifying period. The exclusion is qualitative. The incarceration, reflecting sufficiently serious criminal conduct to warrant an immediate custodial sentence, falls outside what could qualify as “the settled purposes” underlying a person’s ordinary residence in the ordinary and natural sense of those words, referred to by Lord Scarman in Akbarali v Brent London Borough Council, ex p Shah [1983] 2 AC 309 at p. 344. It is this qualitative aspect of time spent in prison that has led to such periods being excluded from the concept of “ordinary residence” in successive statutory schemes and in the Basic Law.

76. I would be prepared to accept that the de minimis principle may apply, for instance, where a person, in a fit of temper, has acted in contempt of court and is sent down to the cells for a few hours or even overnight for his temper to cool and his contempt to be purged. But I would not be disposed to regard imprisonment of any greater substance as capable of engaging the de minimis principle. In the present case, the two week sentence was one of substance merited by the offence in all the circumstances. I see no basis for disregarding it for the purposes of BL art. 24(2)(4) or s 2(4)(b).”

44.  In Asif Ali, Hartmann NPJ, who gave the judgment of the court, said the following regarding section 2(4)(b) of the IO and emphasised the punitive element in a prison term that excludes it from the ambit of that provision:

“9. Concerning s 2(4)(b) of the Ordinance, that is, the provision excluding any period of imprisonment or detention pursuant to the sentence or order of any court from the calculation of a person’s term of ordinary residence, the judgments concluded that, to be consistent with article 24(2)(4), “detention” was to be read ejusdem generis with “imprisonment” so that only periods of imprisonment or detention imposed in consequence of a breach of the criminal law were to fall within the ambit of the section. It was held that, in the context of an application to be recognised as a permanent resident, it is consonant with the ordinary and natural meaning of the phrase “ordinary residence” to exclude periods of imprisonment and detention which are punitive but not other forms of detention which do not evidence punishment for criminal wrongdoing, for example, an order of detention made by a court by reason of a subject’s mental illness.”

“38. In Vallejos and Domingo v Commissioner of Registration, FACV 19 and 20/2012, 25 March 2013, … it is pointed out that Ex parte Shah serves only as a starting-point when approaching the meaning of “ordinarily resided” in article 24(2)(4) of the Basic Law. It is also emphasised that the quality of residence relied on is important to determining whether it constitutes “ordinary residence” in the particular case. There is a fundamental qualitative difference between detention pending trial and imprisonment pursuant to the sentence of the court after trial. The first, even though it imposes hardship on the individual, is not punitive. The second is designed for the very purpose of being punitive. …”

45.  The prison term of 13 days was one of substance and was punitive in nature, part of a seven-month sentence which reflected the seriousness of the offence committed by the applicant.  It could not be disregarded for the purpose of section 2(4)(b) of the IO.  It is not reasonably arguable that the 13-day period could be treated as de minimis.

46.  The first ground for judicial review has no realistic prospects of success.

The second ground

47.  This is a challenge to the constitutionality of Schedule 1, para 3(2) of the IO.  It was contended that on a purposive construction of Article 24(2)(4) of the Basic Law, once the applicant satisfies the Entry Requirement, the Seven Years Requirement and the Permanence Requirement, the right of abode is automatically conferred even if there is no approval by the Director through the VEPIC process.

48.  In Prem Singh, it was held by the Court of Final Appeal at paras 56 and 57 that a fair and reasonable statutory scheme for the proper verification of a person’s claim to right of abode is constitutional and that until such claim is verified, the applicant does not enjoy the rights of a permanent resident and in the context of a non-Chinese person claiming the right of abode, this is reflected by Schedule 1, para 3(2) of the IO.  In view of this judgment, I do not think the contention that the right of abode is automatically conferred once the three requirements are met and before the claim to right of abode is verified is reasonably arguable.  It was clearly stated in Prem Singh at para 58:

“Accordingly, a non-Chinese person claiming the right to permanent resident status and hence a right of abode, must apply to the Director for his claim to be verified. In accordance with BL art. 24(2)(4), the Director is entitled to seek evidence which would establish that the applicant satisfies the entry, seven year and permanence requirements referred to in para. 49 above.”

49.  Mr Dykes contended that the Director and the Secretary have treated Schedule 1, para 3(2) of the IO, not merely as a procedural mechanism for verifying an applicant’s permanent residence status in Hong Kong, but relied on it as an absolute requirement to deny the applicant his substantive right of abode.  He pointed to the Director’s reply to the Director of Legal Aid dated 3 January 2006 which stated:

“According to immigration records, [the applicant] … had not made any application for verification of eligibility for permanent identity card.

Your attention is also drawn to paragraph 3(2) of Schedule 1 to the Immigration Ordinance, Cap. 115 …”

50.  The meaning Mr Dykes sought to read into the Director’s letter is not borne out by the wording of it.  The Director was merely stating the fact that the applicant has not made an application for VEPIC and referring to Schedule 1, para 3(2) in that regard.

51.  The second ground has no realistic prospects as well.

The third ground

52.  It was contended here that the Director had failed to take into account relevant considerations in that it is unreasonable to expect the applicant’s wife to live in or travel often to Pakistan, given her business in Hong Kong, her family ties and her two young children aged nine and five who have no connection with Pakistan.  Complaint was also made that neither the Director nor the Secretary had taken into account, among other matters, that the applicant prima facie satisfies the three requirements for permanent residence.  Mr Dykes submitted that the applicant is not relying on any family right to remain in Hong Kong as a dependent, but relying on the fact of his marriage to Ms Hung in that the Secretary must consider his wife’s situation in the round as opposed to a close focus on the desirability or undesirability of his continued presence in Hong Kong.

53.  The relevant part of Internal Minutes M4 read as follows:

“Change in personal circumstances

20. [The applicant’s] marriage with Madam Hung in January 2012 took place after the making of the deportation order. When he decided to marry Madam Hung, [the applicant] was well aware of the existence of the deportation order and that he was not allowed to be in Hong Kong. He should not have any expectation that he and his wife would be able to lead a normal family life in Hong Kong. While the deportation may deprive [the applicant] of his proximity to his wife in Hong Kong, it will not prevent them from staying together in Pakistan or other places outside Hong Kong. Considering also that both [the applicant] and Madam Hung are able-bodied adults, it remains a matter of their choice whether they would wish to reunite in places outside Hong Kong although they may need to work a little bit harder to re-establish their life in the beginning. In this connection, it is noted [the applicant’s] mother and some siblings are currently residing in Pakistan. In case Madam Hung chooses not to stay with [the applicant] in other places, she is still free to visit him abroad if she wishes. This applies also to [the applicant’s] siblings residing in Hong Kong as well as Madam Hung’s two children (i.e. [the applicant’s] step-children). Based on the foregoing, it is submitted that despite his recent marriage, there is no sufficient compassionate ground that may warrant an exceptional consideration of his deportation. Insofar as the claimed right to family reunion is concerned, there is a long line of court decisions holding that being a person who has no right to remain in Hong Kong in the first place, neither [the applicant] nor her [sic] family could invoke the claimed rights to resist deportation.”

54.  The long line of court decisions referred to by the Director were the cases discussed by Lam J (as he then was) in Comilang Milagros Tecson & Anr v Commissioner of Registration & Ors, HCAL 28/2011, 15 June 2012, at paras 26 to 99.  This part of his judgment was not disturbed in the Court of Appeal in CACV 183/2012, 2 May 2013. It is well established that in considering deportation, the Secretary has no general duty to take compassionate or humanitarian factors into account, even where family ties might be affected.

55.  It is apparent from Internal Minutes M4 in particular the passage quoted above that the Director has taken into account the circumstances of the applicant’s wife and her children.  The Minutes also stated that the Director has considered the representations made by the applicant, his wife and his legal representatives.  There is nothing to indicate that any relevant consideration was overlooked.

56.  The present situation is not analogous to Comilang Milagros Tecson, in which it was held by the Court of Appeal that an application of a mother to remain to look after her child who is a permanent resident was rejected by the Director on an apparently misconceived basis, as if it were an application of the mother to remain in Hong Kong as the child’s dependant.

57.  I do not think the third ground is reasonably arguable.

Conclusion

58.  As none of the new grounds in the amended Form 86 meet the threshold requirement that they are reasonably arguable, I would refuse leave to amend the form.  It follows that leave to apply for judicial review must be refused and this appeal must be dismissed.  I would award costs of the appeal to the putative respondents.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Hon Lam JA:

59.  I agree with the judgment of Kwan JA.

Hon McWalters J:

60.  I agree with the judgment of Kwan JA.