MD YAZDANI v. DIRECTOR OF IMMIGRATION

HCAL 186/2023

[2023] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 186 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the subject of a Deportation Order made on 12 December 2017. He has also been staying in Hong Kong, unlawfully, since November 2013.

2.  This long period of unlawful stay had been tolerated by the Director of Immigration in the past, because the Director used to adopt a removal policy not to remove non-refoulement claimants as long as their non-refoulement claim (“NRC”) or any consequent judicial review applications, up to the Court of Final Appeal (“CFA”) level, are still ongoing.

3.  The Applicant’s NRC was rejected by the Director in 2017, and by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) later the same year. His judicial review leave application arising from his NRC was rejected by the Court of First Instance (“CFI”) in 2018. The Applicant has pursued appellate proceedings in the Court of Appeal (“CA”) without success, but is still trying to pursue a further appeal in the CFA.

4.  With effect from 7 December 2022, the Director has updated the removal policy such that once an NRC has reached the stage of its consequent judicial review proceedings having been rejected by the CFI, the Director may proceed to remove such a claimant from Hong Kong.

5.  As a result, the Applicant is considered ‘removable’ under the new removal policy (albeit that would not have been the position under the old policy).

6.  After the updating of the removal policy, the Director has taken steps to remove the Applicant pursuant to the Deportation Order. Repatriation flights to India were arranged twice, on 12 January 2023 and on 10 February 2023. The Applicant did not board either flight.

7.  Rather, his Counsel sought a delay (see below), which led to the removal attempt on 12 January 2023 being aborted. Then, he filed a Form 86 on 9 February 2023 to seek leave to apply for judicial review to challenge the Director’s decision to execute Deportation Order, which led to the removal attempt on 10 February 2023 being aborted.

8.  I originally fixed the leave hearing for 19 April 2023. But in the afternoon of the day before, the Applicant, who is acting in person, called my Clerk to ask for the hearing to be postponed. He did not explain why a postponement would be needed. He was told to attend the hearing the next morning and to make an application for adjournment if necessary. He did not appear in Court on 19 April 2023. Upon making contact with him by phone, it was revealed that he had gone to the Accident & Emergency Unit at the Pok Oi Hospital at about 9am that morning. The medical certificate he faxed to the Court later that day shows that he was suffering from back pain and constipation. No hospitalisation occurred.

9.  I directed the hearing to be adjourned to 24 April 2023, and made it clear to the Applicant (via my Clerk over the phone) that the hearing would proceed in his absence if he failed to appear without legitimate excuse.

10.  The leave application was heard on 24 April 2023. The Director was represented by Mr Martin Ho of Counsel. The Applicant appeared in person with the benefit of a Hindi/English interpreter.

11.  At the hearing, the Applicant further sought an adjournment, of perhaps three months, on the basis that he was hoping to obtain some legal assistance from the potentially free representation offered to some persons by the Hong Kong Bar Association. He also complained that he had not received the Director’s initial response and the hearing bundle until 20 April 2023, though it is clear that the Applicant already had the necessary card to enable him to obtain the bundle from the post office. The Applicant also said that he needed to spend some time with the hearing bundle in order to identify what grounds he might have. I refused the adjournment sought, broadly on the following basis:

(1)  As shown by an affidavit of service, service of the initial response and hearing bundle had been effected by post on 29 March 2023, to the address provided by the Applicant in his Form 86 (and which he confirmed at the hearing is still his address).

(2)  The suggestion that he had not been able to find the card – he suggested because of a mix-up of post boxes – allowing him to collect the parcel from the post office until 20 April 2023 was unconvincing.

(3)  It is a requirement that the Applicant should identify his intended grounds of review in his Form 86, and it is impermissible simply to commence proceedings and hope subsequently to identify some grounds of review.

(4)  The Applicant had applied for legal aid in respect of his application to the CFA, but his application was rejected.

(5)  In fact, in any event, the Applicant had had the benefit of some legal advice and assistance because Counsel wrote to the Director by letter dated 6 January 2023 on this matter (see below).

(6)  Even then, the Counsel sought only a 3-month delay, which period has by now already expired.

(7)  By reference to the apparent merits of the application for leave to apply for judicial review, the application is misconceived, and (as submitted by Mr Ho) it would be an abuse to seek to obtain a de facto stay of the Deportation Order by use of an adjournment of these proceedings.

(8)  In any event, where the Applicant has appeared at the hearing with the benefit of an interpreter, and is able to hear the clear interpretation of the submissions made against his application, he was in a position to respond.

(9)  On any relevant balance of prejudice, and in the exercise of my discretion, it seemed to me clear that the adjournment would likely serve little purpose except to delay matters overall.

12.  The substantive application for leave to apply for judicial review therefore went ahead. Submissions were made by the Applicant, by Mr Ho, and by the Applicant in reply. At the conclusion of the hearing, I reserved my decision.

13.  This is my Decision.

B.  The Applicant’s NRC

14.  The Applicant lodged his NRC in 2014. His claim was rejected by the Director in May 2017. He then appealed against the Director’s decision to the Board, which dismissed the appeal in September in the same year. That exhausted all the available administrative avenues for the Applicant to establish his claim within the what is called “Unified Screening Mechanism” (“USM”).

15.  The Applicant then embarked on the journey to overturn the Board’s decision by way of judicial review. In November 2017, he sought leave to apply for judicial review of the Board’s decision from the CFI. On 4 December 2018, the CFI refused leave: [2018] HKCFI 2208. In June 2021, namely about 2½ years later and well out of time, the Applicant sought leave to appeal against the CFI’s refusal. The CFI refused to grant any extension of time on 2 August 2021: [2021] HKCFI 2253.

16.  Then the Applicant took his case to the CA. In September 2021, the Applicant renewed his extension of time application before the CA. On 21 March 2022, the CA refused to extend time: [2022] HKCA 432. In April 2022, the Applicant applied to the CA for leave to appeal to the CFA. The CA rejected this application on 1 December 2022: [2022] HKCA 1768.

17.  On 6 December 2022, the Applicant renewed his leave application before the CFA. In the same month, the CFA issued what is colloquially called a “Rule 7 summons”, requiring the Applicant to show cause by written submissions by 12 January 2023 why his application should not be dismissed. The basis of issuing the Rule 7 summons is that the Applicant’s leave application is considered to have disclosed no reasonable cause of action.

18.  At the hearing before me, the Applicant stated that he had not filed any submissions either by the deadline of 12 January 2023 or at all. The application to the CFA is still pending the CFA’s decision. On the face of it, the application is almost bound to be dismissed.

C.  The Issuance of the Deportation Order

19.  Whilst the Applicant’s NRC or related judicial review proceedings were still ongoing, he was largely allowed to live freely in society. However, he soon committed a series of criminal offences for which he was sentenced, including to terms of imprisonment, from time to time:

(1)  On 8 January 2015, he was sentenced to 4 months’ imprisonment for wounding inflicting grievous bodily harm.

(2)  On 22 October 2016, he was fined HK$1,200 for theft.

(3)  On 4 January 2017, he was sentenced to 2 months’ imprisonment for possession of dangerous drugs, and two months’ imprisonment for assault occasioning actual bodily harm, to run consecutively.

(4)  On 6 December 2018, he was sentenced to 6 months’ imprisonment for possession of dangerous drugs, and 14 days’ imprisonment for assaulting a police officer, to run concurrently.

20.  Section 20(1) of the Immigration Ordinance (“Ordinance”) empowers the Chief Executive to make a deportation order against an immigrant if that immigrant has been found guilty in Hong Kong for an offence punishable with imprisonment for not less than two years; or that the Chief Executive deems it conducive to the public good to do so.

21.  On 12 December 2017, the Permanent Secretary for Security, exercising the power delegated from the Chief Executive, made the Deportation Order against the Applicant on the basis of the criminal offences he had committed up to that point, which are all punishable with not less than two years’ imprisonment under the law. The Deportation Order is not now – and realistically cannot now be – subject to challenge.

22.  Section 25 provides that a person in respect of whom a deportation order is in force may be removed from Hong Kong. There is no doubt that there is power to deport or remove the Applicant from Hong Kong.

D.  The Change of Removal Policy on 7 December 2022

23.  Whilst the Deportation Order was issued in December 2017, the Director only made arrangements to execute it four years later, in December 2022.

24.  As already mentioned, this is because of the original removal policy not to remove claimants whose NRC or consequent legal proceedings were still ongoing either in any of the administrative avenues or in the courts, or that the Director knew that such proceedings were about to commence. The original policy was set out a paper submitted to the LegCo in 1999, titled “LegCo Panel on Administration of Justice and Legal Services Policy and Practice on Removal of Illegal Immigrants”.

25.  It is now a matter of public knowledge that it has been common that for a NRC to exhaust all the administrative and judicial avenues, all the way from the Director’s decision to the CFA’s, might take years or even more than a decade. Some claimants will also try to resurrect their NRC, which has already been rejected by the CFA, by filing a ‘subsequent claim’. Hong Kong has been flooded with tens of thousands of claimants in the past decade who have been lingering in Hong Kong for years pending the ultimate resolution of their NRC. This has created an enormous workload and pressure to both the Government and the judicial system.

26.  As a result, the Government changed the removal policy on 7 December 2022. The amendment and its background are set out in the paper submitted to the LegCo titled “Enhancing the Handling of Non-refoulement Claims”. The policy now adopted is that the Director may generally proceed with the removal from Hong Kong of unsubstantiated non-refoulement claimants, upon the CFI’s dismissal of their applications at either the leave stage or the substantive stage, notwithstanding there may be extant or contemplated appeal proceedings.

27.  However, it is also emphasised in the LegCo paper that notwithstanding the general policy, the Director will consider all the relevant circumstances of the individual cases in pursuing removal operations.

28.  Thus, after the new removal policy has come into effect on 7 December 2022, the Applicant has fallen into the category where (as a matter of the general position) the Director shall proceed to remove him, subject to an assessment on the individual merits of his case.

E.  The Execution of Deportation Order

29.  As stated, the Director started to take action to deport the Applicant in December 2022. By letter dated 30 December 2022, the Director informed the Applicant that a flight had been booked to repatriate him on 12 January 2023. The Applicant’s terms of recognizance were accordingly amended to include a requirement for him to report at the Hong Kong International airport on that date for his flight.

30.  In a phone interview conducted by the Director with the Applicant, the Applicant reiterated his unwillingness to return to India. By letter also of the same date of 6 January 2023, the Applicant, by his Counsel Mr Rowan Hunter, requested the Director to delay the Applicant’s removal for three months. Mr Hunter reasoned as follows:

(1)  The Applicant had made an application to the CFA issued on 6 December 2022, and the CFA issued a rule 7 summons on 15 December 2022, asking the Applicant to file written submissions to show cause by 12 January 2023.

(2)  The Applicant wished to supply proper, reasoned grounds, which he intends to do with legal advice.

(3)  The clear problem is that the date for deportation is the same date for filing those written submissions.

(4)  The decision of the CFA will be relatively swift, but sometime after even that date.

(5)  The updated policy change on 7 December 2022 is acknowledged.

(6)  However, it is suggested that:

(a)  the Applicant’s claim was made before the policy change came into force;

(b)  his application to the CFA was made before the policy change came into force;

(c)  the CFA has required the Applicant to provide improved grounds on 12 January 2023, the day of deportation;

(d)  the previous failures at CFI and CA level aside, the CFA is prepared to consider what grounds are provided by the Applicant, and that should be respected;

(e)  no final determination has been made, and the matter is not yet at an end;

(f)  in the interests of reasonableness, justice and respect for fairness and the rule of law, the deportation should be delayed until the matter is finally determined.

31.  What Mr Hunter seemed to imply, without expressly saying so, is that in the circumstances the Director should not apply the updated policy to the Applicant.

32.  The Director replied to Mr Hunter’s letter by letter dated 2 February 2023 (“2/2/2023 Letter”) which essentially rejected Mr Hunter’s request to delay removal for three months. By that time, the original repatriation date set at 12 January 2023 had already lapsed. The Director rescheduled the repatriation date to 10 February 2023 and asked the Applicant to report at the Hong Kong International airport on that date for his removal to India.

33.  The 2/2/2023 Letter started by expressly saying that it was to serve as a substantive reply to Mr Hunter’s letter. The letter was two pages long and can be summarised as follows:

(1)  The Director is committed to removing unsuccessful non-refoulement claimants, who are illegal immigrants or over stayers, as soon as practicable.

(2)  The Applicant is subject to the Deportation Order which remains subsisting.

(3)  Under the updated removal policy, the Director will proceed to remove unsubstantiated non-refoulement claimants when the consequent judicial review applications have been rejected by the CFI. The Government considers that the new policy has struck an appropriate balance between the claimants’ right under the Basic Law and the Hong Kong Bill of Rights on the one hand, and the need to safeguard public interest on the other hand. Public interest considerations include maintaining effective immigration control, preventing the judicial process from being used as a delaying tactic, etc.

(4)  The Director then set out the process of the Applicant’s NRC so far and said that his case no longer constitutes a legal impediment to removal under the new policy.

(5)  The Director concluded the letter by saying that the necessary travel document had been obtained for the Applicant, flight arrangements had been made for his return to India on 10 February 2023, and asked him to report to the Immigration Department at check-in Aisle G of Departure Level (L7) at the Hong Kong International airport at 2pm on 10 February 2023 for his flight.

34.  On 9 February 2023, the day before his scheduled departure, the Applicant filed this judicial review leave application. Obviously, the removal operation was aborted as a result.

F.  The Applicant’s leave application

35.  In the Form 86, the Applicant identified as the subject of the proposed challenge “The Decision of the Director of Immigration dated 2^nd February, 2023”. He sought the relief of “an order of certiorari to bring up and quash the Director of immigration’s Decision dated 2^nd February 2023 for withholding all departure proceedings of the Applicant”.

36.  Whilst Mr Hunter only asked to postpone the removal for three months (which period would have already expired by now even if the request was acceded to), the Applicant did not say for how long he would want the departure proceedings to be withheld.

37.  As for grounds on which relief is sought, the Applicant said that the Director, in the 2/2/2023 Letter, did not consider the merits of his case or the facts and relied solely on the new policy. He also said that the Director wrongly rejected Mr Hunter’s explanation letter dated 6 January 2023.

38.  The Applicant did not elaborate on his grounds further in the affirmation filed in support of his leave application, but he exhibited various documents including a card issued by the legal aid department confirming that he had applied for legal aid on 11 January 2023. The Applicant said that the legal aid application was for the purpose of assisting in the filing of written submissions to the CFA. But it can be noted that the legal aid application was made only the day before the submission deadline set by the CFA. It has in any event since been rejected, as the Applicant confirmed at the hearing.

39.  At the hearing, the Applicant emphasized the chronology point, namely that he launched his application to the CFA before the updated policy came into force or was notified to him, and that as his NRC-related proceedings have not been completed he cannot be removed.

40.  He also made various complaints about the way he felt he had been treated when he attended to sign on recognizance, saying that he had been kept waiting and harassed (whilst other persons signing were dealt with within a few minutes). But I do not think this is pertinent to the current intended challenge. Nor is his general request to have more time in Hong Kong, so as to be able to negotiate away or solve his “problem” at home, after which he says he would be willing to leave. These proceedings are not the occasion to revisit what has been found by earlier decisions in his NRC-related proceedings, and the submission simply tends to identify the Applicant’s real aim is simply to delay as long as possible his deportation.

G.  Whether there is any Merit in the Application

41.  Mr Ho submitted that the challenge before the Court is a challenge to a fact-specific decision to execute a valid and extant Deportation Order, made as long ago as 12 February 2017. I think what he also meant is that this is not a systemic challenge to the updated removal policy adopted on 7 December 2022. I agree:

(1)  The Applicant did not expressly challenge the new policy on its own. In oral submissions, the Applicant recognised the existence of the updated policy, but suggested that it should not be applied to him. Neither of the two points made by Mr Hunter in his letter really amounted to an attack on the updated policy.

(2)  The chronology point does not really explain why the Director should not apply the new policy to the Applicant simply because his NRC was lodged, or the leave application to the CFA was made, before the policy had been changed. But this is clearly not an argument that the new policy itself is susceptible to be challenged on any public law grounds.

(3)  The other point is a plea for the Director to wait for a further short period before the expiration of which Mr Hunter believed the CFA would have made its decision. What Mr Hunter said is not that the Applicant is entitled, as a matter of right, to have the opportunity to establish his NRC up to the CFA level, but rather that it would be unreasonable or unfair not to allow the request when the postponement sought is only of a few months. In other words, Mr Hunter argued that the Director should take into consideration and to give some weight to the fact that the Applicant’s NRC is still at the stage of awaiting the CFA’s final determination. The Applicant made the same point to me orally.

(4)  Nor did the Applicant raise any challenge to the policy itself in the Form 86. What he said is that the Director – in making the decision to execute the Deportation Order – solely relied upon the new policy without assessing the merits of his individual case. This is not an argument that the policy should not be adopted or is irrelevant, but is an argument that it should not be used as a ‘bright line’ rule and that every case must be assessed on its individual circumstances.

42.  But I will focus on the intended challenge to the fact-specific decision, as raised in the Applicant’s case. This is not likely fertile territory for a public law challenge, where the weighing of matters for a decision lies with the original decision-maker, not the Court. For the Court to interfere, a clear public law error would need to be identified.

43.  The Applicant did not elaborate on what are the merits of his individual case which he said the Director had failed to consider. But it seems to me that there is no basis to suggest that the Director did not take into account relevant factors, or that the Decision was otherwise made solely on the basis of the updated removal policy. In line with established practice, the Director will consider all relevant circumstances of the individual case when pursuing removal operations.

44.  Nor did the Applicant explain why the Director was wrong in rejecting Mr Hunter’s letter (though it may be that by the merits of his individual case he was referring to the two points made by Mr Hunter in his letter).

45.  But, I think the Applicant’s real focus was on the chronology point, relating to the time when the Applicant made his NRC – or, more specifically, made his application to the CFA – which predated the promulgation of the updated removal policy. But, I have already said that I cannot see how the chronology point on the making of, and outstanding decision for, the CFA application could assist the Applicant. Insofar as the point might suggest a complaint about retroactivity, there is no retroactive effect involved in the updated policy. Nor could the Applicant have any expectation except that he remains liable to lawful removal, in accordance with the prevailing policy.

46.  It is important to note that the neither the old policy or the updated policy was or is the source of the power to deport or remove the Applicant from Hong Kong. That power is found in the Ordinance, as I have identified above. It is entirely within the lawful authority of the government to effect the deportation or removal of a person subject to a deportation order, and also to clarify the removal procedures by an updated policy. The updated policy merely clarifies that an appeal (such as the Applicant’s further application to the CFA) will not operate as a stay of deportation or removal.

47.  In those circumstances, it may be no surprise that there is no challenge made to the updated policy itself.

48.  Nor do I think that reasonableness or fairness would necessarily require the Applicant to have the opportunity to have his case determined by the CFA before he could be deported. As it now stands, his NRC remains unsubstantiated and the Deportation Order remains extant. Whether the Applicant should be allowed a further attempt to establish his claim prior to deportation boils down to whether this is required as a matter of procedural fairness, in light of the circumstances specific to him and in the context of the fundamental rights underpinning his NRC.

49.  It is trite, from cases such as the CFA’s decision in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that: (1) high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) the courts will on judicial review subject such adjudication to rigourous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

50.  Prabhakar and the other cases do not say that, when an NRC claimant has sought to challenge the administrative decision in the court by way of judicial review, procedural fairness would require the Government to postpone removal pending the resolution of such court proceedings. In any event, it seems clear to me that the appropriate “every reasonable opportunity” to establish his claim is given when the CFI looks at the Board’s decision and assesses whether the high standards of fairness required have been met.

51.  Further, in the present case, I have no difficulty in coming to the view that the Applicant has indeed already been given every reasonable opportunity to establish his NRC. Whilst a person may be entitled to exhaust all judicial avenues in attempting to overturn the administrative decision by way of judicial review, all the way up to the CFA, he does not have to. In the present case:

(1)  The Applicant’s NRC has remained unsubstantiated at all times.

(2)  From December 2014 when he launched his NCR until now, the Applicant has had no less than 8 years to establish his NRC.

(3)  His NRC has been considered and rejected by four separate bodies, namely the Director, the Board, the CFI and the CA. In the case of the CFI and CA, they had each rejected the applicant twice, making six the total number of occasions the Applicant’s NRC or complaint about its handling had been rejected.

(4)  The CFI pointed out that the Applicant did not submit any grounds of review, nor complain of any specific procedural irregularity, unfairness or unreasonableness. Nevertheless, even considering the papers, the CFI held there was no evidence of procedural unfairness, nor a failure to adhere to the high standard of fairness throughout. It was said that the Applicant’s case “has no merit”.

(5)  The CA held that there was no reasonable explanation for the Applicant’s delay in bringing the intended appeal, but in any event the application for leave for judicial review “was hopeless and rightly dismissed by the Judge”.

(6)  Whilst the CFA has not yet rejected the Applicant’s application to it, it is evident in the Rule 7 summons issued that the CFA is of the view that the leave application before it has disclosed no reasonable cause of action.

(7)  The Applicant has failed to file any submissions even attempting to show cause why his application should not be dismissed, and there is no evidence of any extension of time granted by the CFA for any such submissions.

52.  In the circumstances, I do not think fairness or reasonableness would require the Director to wait for the CFA’s decision before executing the Deportation Order.

H.  Result

53.  Ultimately, I accept Mr Ho’s submission that in the circumstances of the Applicant’s case, not least where his NRC has been duly considered and rejected by four separate bodies on six separate occasions (including by both the CFI and CA), there is no reasonably arguable basis to say that the Decision, which merely seeks to implement the extant and legally valid Deportation Order is impugnable on any public law grounds.

54.  Where the leave application discloses no reasonable arguable grounds, the application is dismissed.

55.  As to costs, I agree with Mr Ho’s submission that this is a case where the Director’s costs should be paid by the Applicant. I say so, notwithstanding the perhaps practical reality that those costs will not be recovered from the Applicant, not least because he is likely soon to be deported. Nevertheless, applicants should understand that if their applications are ill-conceived and lack merit, there is a significant risk of an adverse costs order being made against them.

56.  This application was indeed thoroughly ill-conceived and unmeritorious, and it seems to me that it has been launched (as the Applicant in essence made clear in his own oral submissions) to serve the Applicant’s personal interest in delaying as long as possible his departure from Hong Kong. The Director has incurred time and costs in preparing the initial response and in attending the hearing, so as to assist the Court.

57.  The amount of costs to be paid will be subject to summary assessment, to be performed on the papers.