SUKHMANDER SINGH v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

HCAL 23/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 23 OF 2009

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J U D G M E N T

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1.  I have borne Mr Chow SC’s point in mind that the Court must guard against any possible forensic or tactical move designed to delay proceedings.  Even in the absence of any such attempt, a suggestion that a hearing date for a substantive application should be adjourned, will not be lightly entertained in this post-Civil Justice Reform era.

2.  Specifically, the Court agrees with Mr Chow’s point about the importance of finality in proceedings, but in this sort of matter concerning deportation, as Mr Chow has also fairly reminded the Court, the Permanent Secretary or the Director would always entertain genuine requests for reconsideration.

3.  Here, given the medical certificate from a specialist psychiatrist about the applicant’s condition, I think there is genuine material which the applicant may rely on to ask for a reconsideration of the deportation order in question.

4.  As regards timing, I note that the medical certificate from the psychiatrist only came in last week.  I note the history, or the alleged history of the applicant’s condition.  I also bear in mind the fact that the deportation order was made back in 2007 but maybe to be fair to the applicant, his condition, apparently, is a progressing one so that a definite diagnosis was only capable of being made by his doctor very recently.

5.  I further note that this possibility about staying or adjourning the proceedings, pending the making of a fresh application or the outcome thereof, did not come from the applicant.  It actually came from the Court.  The applicant did not ask for an adjournment of today’s hearing on the strength of the latest medical certificate.  In my view, that goes a long way to showing that the applicant is not playing any delaying tactics here.

6.  It is true that when the challenge was first taken out, no definite psychiatric condition was relied on.  That is understandable because the diagnosis was only made last week so far as the evidence shows.  Again, in my view, it shows that one is concerned, apparently, with a genuine case which has been developing, because, originally, the complaint was simply that the applicant had been psychologically traumatised by the whole event.  That trauma has apparently developed into a definite psychiatric condition, namely, paranoid schizophrenia.

7.  As regards the content of the medical certificate, undoubtedly it is very brief, and self-evidently, the doctor’s diagnosis and prognosis were based very much on information supplied by the applicant’s family.  This is a matter going to the genuineness of the condition now claimed by the applicant.

8.  It is not a matter that the Court can resolve by simply looking at the one-page medical certificate.  But all this does not detract from the fact that there is before me a medical certificate which might, possibly, affect the consideration by the Permanent Secretary in relation to the deportation order if a request for reconsideration is made.  Intention to make such a request has just been confirmed by counsel on behalf of the applicant.

9.  It is, of course, possible for the Court to proceed with the scheduled hearing, and listen to all the arguments surrounding the Permanent Secretary’s decision to deport the applicant and her refusal to rescind the deportation order, based on materials then available to her.  But I believe counsel on both sides agree with the Court that the case turns very much on whether the applicant can realistically be expected to live somewhere in India other than the home village of his wife.  It requires little elaboration to see immediately that his psychiatric condition, or his apparent psychiatric condition, would greatly affect the answer to that crucial question.

10.  For that reason, the previous consideration by the Permanent Secretary, based on the materials then available to her, has very much now been overtaken by this event, or apparent event, namely, the condition or apparent psychiatric condition of the applicant.  It would be unrealistic to turn a blind eye to this condition or apparent condition and proceed with examining the decisions based on the earlier reasons available to the parties.

11.  The Court does not sit in its public law function to decide academic questions or questions that have, since the commencement of proceedings, lost their real significance.  Rather, there are authorities in the United Kingdom to the effect that, at least in immigration matters, it is quite open to the court to stay or adjourn existing proceedings to await the outcome of a request for reconsideration of the decision under challenge, if the request was genuinely made and was made for good reasons.  See generally Fordham, Judicial Review Handbook (5th ed) para 5.1.5.  Of course, what is under discussion there is simply the court’s discretion by way of case management, but it shows the degree of flexibility that the court enjoys in situations of the present type.

12.  Having considered the matter as a whole, without over-focusing on the particular disputes arising from the two decisions of the Permanent Secretary under challenge, I think interests would be better served by the Court adopting a similar approach in the present case, ie, to stay the present proceedings pending the making of a request to the Permanent Secretary for a reconsideration of the deportation order based on the recently diagnosed condition of paranoid schizophrenia and, after that request is made, the outcome of the request/reconsideration.

13.  Looking ahead, if the outcome is favourable to the applicant, that would, of course, barring any accident and any argument as to costs, be the end of the matter. 

14.  If the result of the reconsideration is that no deportation would be carried out pending the satisfactory treatment of the applicant’s condition, then at least that would cater for the position of the applicant for the time being.

15.  On the other hand, if the outcome of the reconsideration is wholly against the applicant, then the present proceedings may be resurrected with the new decision substituted for the decisions under challenge, if appropriate, so that the Court can in such an event look at the matter globally and consider all relevant considerations before deciding whether the deportation order can withstand the challenge of the applicant or not.

16.  That may or may not cover all possibilities, but hopefully, it would provide a workable roadmap for the parties.  There are, of course, technical things to work out to ensure that the request is made promptly, and that full co-operation is rendered to the Permanent Secretary to enable her to determine the renewed request for reconsideration, including in particular the medical examination of the applicant by experts of the choice of the Permanent Secretary. 

17.  It goes without saying that if there are further or other grounds that the applicant may also wish to rely on in support of the request for reconsideration, they must be put forward in one go to the Permanent Secretary.

18.  Unfortunately, all this would cost time and delay but, in my view, looking at the matter in the round, this is a better course to take and, subject to the framing of the appropriate directions, this is my decision.

[Submissions by counsel]

19.  Upon the applicant, by counsel, undertaking:

(i)    to submit to the Permanent Secretary for Security a fresh request for reconsideration of the subject deportation order, based on the applicant’s recently diagnosed psychiatric condition and any other grounds or matters not previously disclosed to the Permanent Secretary for Security when the decisions under challenge were made, within 10 days from the date hereof;

(ii)   to submit to medical examination or examinations reasonably required by the Permanent Secretary for Security at the latter’s cost;

It is ordered that:

(1)   the present proceedings be stayed pending the outcome of the request for reconsideration, with liberty to the parties to apply to lift the stay;

(2)   costs be reserved.