SECRETARY FOR SECURITY v. SAKTHEVEL PRABAKAR

FAMV No. 18 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2003 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 211 OF 2002)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. Mr Sakthevel Prabakar fled from Sri Lanka as a refugee. The Secretary for Security seeks leave to appeal to the Court of Final Appeal from a judgment of the Court of Appeal whereby his predecessor's decision to deport Mr Prabakar from Hong Kong was quashed by an order of certiorari. At the time of that decision to deport, the United Nations High Commission for Refugees, to give the UNHCR its full name, had declined to recognise Mr Prabakar as a refugee. But subsequently the UNHCR recognised him as a refugee. Whereupon the Director of Immigration decided that Mr Prabakar should not be deported to Sri Lanka but instead to some other country willing to accept him. Despite the UNHCR's recognition of Mr Prabakar as a refugee and on the basis that his deportation would not be to Sri Lanka, the Secretary for Security declined to rescind the deportation order, putting forward the reason that it was based on Mr Prabakar's criminal conviction for possession of a false travel document. Since the Court of Appeal's judgment, Mr Prabakar has left Hong Kong for Canada where he has been accepted as a refugee.

2. Nevertheless the Secretary for Security maintains that an appeal to the Court of Final Appeal would not be academic even as between the immediate parties to it. This is because, the Secretary for Security says, the deportation order prohibits Mr Prabakar from returning to Hong Kong and he i.e. the Secretary for Security is not obliged to accept Mr Prabakar's word that he has no intention of returning to Hong Kong. The Court of Appeal thought that there was no likelihood that Mr Prabakar would return to Hong Kong ever or at least in the foreseeable future. So it considered this matter academic as between the immediate parties. Understandably, therefore, the Court of Appeal declined to grant the Secretary for Security leave to appeal from its judgment, and took the view that it ought to be left to us to decide whether or not to grant such leave.

3. Mr Prabakar was only in transit here when he was arrested. His experience here was a far from happy one. He has no connection with Hong Kong. And he is now settled in Canada ? happily, we are glad to be told. The chances of his ever wanting to return to Hong Kong seem slight. So we ask ourselves whether it would be appropriate to grant the Secretary for Security leave to appeal to the Court of Final Appeal even if this matter were to be considered academic as between the immediate parties.

4. Even in the field of public law, the fact that an appeal would be academic as between the immediate parties is a strong factor against granting leave to appeal. But it is not an absolute bar. If there is a sufficiently great public interest to be served by having a question or questions of public law decided by the highest court in the land, then the granting of leave to bring such an appeal can be appropriate even where such an appeal would be academic as between the immediate parties. This appears to be the approach of the High Court of Australia (as can be seen from Allen Commercial Constructions Pty Ltd v. North Sydney Municipal Council (1970) 44 AL JR 173) and of the House of Lords (as can be seen from R v. Home Secretary, ex parte Salem [1999] 1 AC 450).

5. We should also mention Minister for Immigration and Multicultural and Indigenous Affairs v. al Masri [2003] HCA Trans 305. Having seen a newspaper account of the High Court of Australia's refusal of special leave to appeal in that case, we sought information thereon, through our own Registrar, from the Chief Executive and Principal Registrar of the High Court of Australia. And he has been so kind as to furnish us with a transcript of the proceedings in that special leave application. The Federal Court had held that asylum seekers who have been refused asylum cannot be held in detention indefinitely. On the strength of that decision Mr al Masri was released from detention. Whereupon he left Australia. In refusing special leave to appeal, the High Court of Australia appears to have been crucially influenced by the fact that the point or points in the al Masri case could be dealt with in two other cases which their Honours were removing from the Federal Court to themselves.

6. Is there in the present case so great a public interest in having a question of public law decided by the Court of Final Appeal as would justify granting leave to appeal even if the appeal were academic as between the immediate parties?

7. Two questions are put forward by Mr David Pannick QC for the Secretary for Security as reasonably arguable questions of public law which are involved in this case and which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision.

8. The first question is whether the 1984 United Nations Convention Against Torture and the Hong Kong Government's 1999 Report under that Convention impose duties on the Secretary for Security under our domestic law. And the second question is, if so, whether the Secretary for Security has a duty himself or herself to investigate claims of torture and persecution before deporting a persons rather than adopt the conclusions reached by the UNHCR.

9. We are satisfied that those questions are involved. We are satisfied that they are reasonably arguable. And we are satisfied that the public interest in having them decided by the Court of Final Appeal is so great as would justify granting leave to appeal even if the appeal were academic as between the immediate parties.

10. Mr Philip Dykes SC for Mr Prabakar asks that if we are minded to grant the Secretary for Security leave to appeal, we do so on the condition that the Secretary for Security pays Mr Prabakar's costs of the appeal in any event if Mr Prabakar is not granted legal aid for the appeal. The Secretary for Security does not oppose this condition, and we impose it. On that condition, we grant the Secretary for Security leave to appeal to the Court of Final Appeal. The Court will expect to be informed at the hearing of the appeal what approach or approaches an extensive sampling of countries around the world adopt on the question of reliance on UNHCR conclusions in such matters.