TOURAY EDRISA v. PERMANENT SECRETARY FOR SECURTIY

HCAL 91/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 91 OF 2016

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REASONS FOR DECISION

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INTRODUCTION

1.  By his Form 86 dated 17 May 2016, the applicant applied for leave to apply for judicial review of the decision of the Permanent Secretary for Security (“the Permanent Secretary”) dated 21 May 2015 (“the Decision”) refusing to rescind the deportation order made against him on 22 March 2013 (“the Deportation Order”).

2.  The applicant accepts that the leave application was made out of time and thus an extension of time to make the application is required (see paragraph 52 of the Form 86).

3.  Upon consideration of the applicant’s ex parte application for leave to apply for judicial review, I gave (inter alia) the following direction on 16 August 2016, namely, that:-

(1) the application for an extension of time to apply for leave to apply for judicial review; and

(2) the application for leave to apply for judicial review in the event that an extension of time was granted;

be dealt with at an oral hearing, with liberty to the Permanent Secretary to appear at the oral hearing to resist those applications.

4.  On 27 April 2017, the applicant took out a summons seeking leave to amend the Form 86 to raise, essentially, an additional complaint of discrimination, which I shall further describe below when I come to consider the merits of the proposed grounds of judicial review raised by the applicant in his draft Amended Form 86.

5.  The applicant’s various applications came before me on 10 May 2017.  At the conclusion of the hearing, I informed the parties that the applications were dismissed, with reasons to be given later.  This I now do.

BAsic FACTS

(i)    Personal and immigration background

6.  The applicant is a national of Gambia.  He was born on 19 May 1968 and is now 48 years old.  According to him, his parents have both passed away, and his two brothers have left Gambia, one currently living in Nigeria and the other in South Africa.

7.  Madam Lee Lai-Kuen (“Madam Lee”) is a Hong Kong permanent resident.

8.  In July 2008, the applicant visited Hong Kong and met Madam Lee on a social occasion.  After that, they maintained contact and developed an intimate relationship.

9.  On 19 May 2009, the applicant visited Hong Kong again and was permitted by the Director of Immigration (“the Director”) to stay as a visitor in Hong Kong until 17 August 2009.

10.  On 12 July 2009, the applicant was arrested by the Police for the offence of trafficking in a dangerous drug, namely, 30.20 kgs of cannabis in herbal form with an estimated street value of over HK$2.9 million, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.

11.  On 4 November 2009, the applicant lodged a non-refoulement claim with the Director, which was treated as a torture claim made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

12.  On 17 March 2010, the applicant was convicted of the aforesaid offence and sentenced to a term of imprisonment of 4 years.

13.  On 12 March 2012, the applicant was discharged from prison after having served his sentence.  He was transferred to the Immigration Department and detained under the Immigration Ordinance, Cap 115 (“the Ordinance”), pending further action by the Director.

14.  On 12 April 2012, a removal order under section 19(1)(b) of the Ordinance was made against the applicant.

15.  On 3 May 2012, the applicant was released on recognizance under section 36 of the Ordinance.

16.  On 19 September 2012, while he was on recognizance, the applicant married Madam Lee in Hong Kong.

17.  On 10 October 2012, the applicant submitted a dependant visa application for taking up residence in Hong Kong as Madam Lee’s dependant. 

18.  On 15 November 2013, the Director rejected the applicant’s dependant visa application.

(ii)   The Deportation Order

19.  On 22 September 2011, the Director served a notice of consideration of deportation on Mr Touray. On 12 March 2012, the Director informed Mr Touray that further consideration of whether a deportation order would be made against him would be withheld pending the screening of his torture claim.

20.  On 15 August 2012, the Director rejected the applicant’s torture claim.

21.  On 29 August 2012, the applicant filed a petition against the Director’s decision to reject his torture claim.

22.  On 18 October 2012, the applicant’s petition against the Director’s rejection of his torture claim was dismissed by the Adjudicator.

23.  On 20 November 2012, the applicant was requested to provide further representations, if any, on the Director’s proposed application for a deportation order against him.

24.  By his “Grounds Against Deportation” dated 22 November 2012, the applicant objected to being deported on, inter alia, the following grounds:-

(1) his presence in Hong Kong was not undesirable;

(2) he was married to Madam Lee who was a Hong Kong permanent resident;

(3) he believed that Madam Lee was pregnant for 2 months;

(4) he had duly served his sentence and paid his “debt” to the society;

(5) he should not be punished twice for the same offence; and

(6) he had turned a new leaf, and undertook not to commit any offence in future.

25.  By a letter dated 22 November 2012, Madam Lee requested the Director to permit the applicant to stay in Hong Kong on, inter alia, the following grounds:-

(1) Gambia was a very dangerous place at that moment;

(2) she was pregnant for 2 months;

(3) her parents had passed away and no one could take care of her;

(4) the applicant’s life would be saved if he was permitted to stay in Hong Kong for the time being; and

(5) they could decide to move to Gambia once the situation there had become normal.

26.  By a further letter dated 15 January 2013, Madam Lee informed the Director that further medical examination had confirmed that she was not in fact pregnant.

27.  On or about 4 March 2013, the Director submitted an application to the Secretary for Security for a deportation order for life against the applicant on the basis of his aforesaid conviction for the offence of trafficking in a dangerous drug.

28.  The Security Bureau’s assessment of the Director’s application for a deportation order against the applicant can be seen in the Bureau’s internal minutes (M.1).  After referring to the case background and the representations made by the applicant and Madam Lee, the following was stated at paragraphs 14 and 15 of M.1:-

“14. … Based on the available information, we are unable to establish any substantial risk to Mr Touray’s life upon his return to Gambia. As rightly pointed out by [the Director] even if there were such a risk, there is no strong reason to suggest why Mr Touray, being a Gambian national, will be deprived of state protection in the case that his life is put into risk in an unlawful manner after his deportation to Gambia. The deportation order, if made, would only prohibit Mr Touray from returning to Hong Kong. Madam Lee is free to re-unite with Mr Touray in any other places outside Hong Kong if she wishes to do so.

15. The nature of Mr Touray’s committed offence is considered very serious as reflected by the 4 years’ custodial sentence. It is not in the public interest to allow him to come to Hong Kong again. Having taken into account all the circumstances of the case, it is considered that the threat posed by Mr Touray’s continued presence in Hong Kong outweighs the potential hardship that the deportation may cause to him and his wife. I therefore recommend that Mr Touray be deported for life.

29.  On 22 March 2013, the Permanent Secretary approved the recommendation and made a deportation order for life against the applicant.

(iii)  The Decision refusing to rescind or suspend the Deportation Order

30.  On 26 February 2014, Daly & Associates on behalf of the applicant lodged a further non-refoulement claim under or with reference to (i) Article 2 of the Hong Kong Bill of Rights (“HKBOR”), (ii) Article 3 of the HKBOR, and (iii) the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

31.  By a letter dated 18 March 2014, the Director confirmed with Daly & Associates that he would commence assessment of the applicant’s latest non-refoulement claim.

32.  By a letter dated 8 September 2014 to the Immigration Department and copied to the Security Bureau, Daly & Associates on behalf of the applicant requested for the rescission or suspension of the Deportation Order on the following grounds:-

(1) The applicant and Madam Lee enjoyed family right under Article 37 of the Basic Law (“BL”), Article 17(1) of the International Covenant on Civil and Political Rights (“ICCPR”), and Article 10 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).

(2) The welfare of Madam Lee should be taken into account.

(3) There was no evidence to suggest that the applicant posed any threat to the security, law and order in Hong Kong.  He had also complied with all directions of the Immigration Department after his release from prison.

(4) The genuineness of the marriage between the applicant and Madam Lee was not in doubt.  The natural consequence of the enforcement of Deportation Order would be to split the couple and might lead to the marriage being forcibly dissolved.

(5) There was no question as to the financial ability of Madam Lee to support the applicant.

(6) Madam Lee was not responsible for the applicant’s criminal conduct, and they were entitled to have their own rights to family life properly considered and entered into the balance.

(7) It was neither reasonable nor proportionate to expect Madam Lee, who had all along been living in Hong Kong, to emigrate to a foreign state in order to keep the marriage intact.  Neither of them would be able to obtain employment, and Madam Lee would have to live at the village level where she would most likely encounter hardship.

(8) The applicant suffered mental hardship on a daily basis due to his feeling of no sense of belonging and not being able to control his life.  The Deportation Order also put much pressure on the couple, preventing them from having a normal life together and planning their future as a married couple.

33.  By a letter dated 12 September 2014, the applicant informed the Director (inter alia) that: (i) he had decided to withdraw his outstanding non-refoulement claim, and (ii) he intended to travel to Lagos, Nigeria, to wait until “[their] marriage application [was] granted”, which the applicant said was “in process [by] the Immigration Department”.

34.  By a further letter dated 6 October 2014, the applicant informed the Director that he wished to leave Hong Kong voluntarily for Lagos, Nigeria, pending the outcome of his application for “cancellation” of the Deportation Order.

35.  On 23 October 2014, the applicant was deported from Hong Kong to Banjul, Gambia.  In passing, I note that in his first affirmation filed herein on 16 August 2016, the applicant gave an address in South Africa.

36.  By a memo dated 12 November 2014, the Police informed the Director that they saw no grounds to support the application for suspension or rescission of the Deportation Order.

37.  On or about 18 December 2014, the Director recommended to the Secretary for Security that the rescission application should be rejected, and suspension of the Deportation Order should also not be considered in the circumstances of this case.

38.  The Security Bureau’s assessment of the application for rescission or suspension of the Deportation Order can be seen in the Bureau’s internal minutes (M.3). After referring to the family background and immigration status of the applicant and Madam Lee as well as the grounds put forward by Daly & Associates on behalf of the applicant, the following was stated at paragraphs 11 to 15 of M.3:-

“11. The deportation of Mr Touray was the consequence of his criminal conviction in Hong Kong. The fact that Mr Touray was sentenced to four years’ imprisonment demonstrated the gravity of his offence and his potential threat to Hong Kong. It is incorrect to say that the deportation order is another punishment of the crime committed by Mr Touray in addition to his imprisonment sentence. It was held in HCAL 18/1999 that a deportation order is the consequence of a decision that the relevant deportee is no longer welcome in Hong Kong and will not be welcome in the future.

12. The deportation of Mr Touray for life may deprive him of his proximity to Madam Lee in Hong Kong. However, Madam Lee has the freedom to reunite with Mr Touray elsewhere other than in Hong Kong if she wishes to do so. Being a subject of deportation order, Mr Touray should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong.

13. As regards BL 37 which provides that ‘the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law’, it was decided in Gurung Deu Kumari (HCAL 76/2009) that the right under BL 37 is the right to procreate and to foster children. It is not a general right to family or a right to foster children in a particular manner or place. As regards ICCPR 17/BOR 14, section 11 of the Hong Kong Bill of Rights Ordinance, Cap. 383, made it clear that the BOR/ICCPR are unavailable to persons like Mr Touray who have no right to enter and remain in Hong Kong. The Court of Final Appeal in Ubamaka Edward Wilson (FACV 15/2011) affirmed not only the constitutionality of the immigration reservation under section 11 but also the validity of the line of Hong Kong cases which excluded the application of the BOR in relation to the exercise of powers and enforcement of duties under the immigration legislation regarding persons not having the right to enter and remain in Hong Kong, save where non-derogable rights are engaged. It is unlikely that the mere separation of the couple, both being able bodies, caused by the enforcement of a DO in the present case would amount to CIDTP under BOR 3.

14. ICESCR 10 is an international treaty and aspirational covenant which has not been incorporated into the domestic law by legislation and does not confer any direct rights on individuals or obligations [on] public authorities under domestic law. Also, the citation of European or other international authorities by the legal representatives without regard to the differences in context or the applicable instruments is of little assistance.

15. Having considered all circumstances of the case, I recommend that the request for rescission of the deportation order made against Mr Touray be rejected and the suspension of the deportation order should not be considered.”

39.  On 21 May 2015, the Permanent Secretary approved the recommendation and made the Decision refusing to suspend or rescind the Deportation Order.

40.  By a letter dated 21 May 2015, the Permanent Secretary informed Daly & Associates of the Decision, stating that he was unable to find sufficient justifications for suspending or rescinding the Deportation Order.

PROPOSED GROUNDS OF JUDICIAL REVIEW

41.  As can be seen from the draft Amended Form 86, four grounds are advanced in support of the present application for leave to apply for judicial review, namely:-

(1) The Permanent Secretary made errors of law and/or misdirected himself in law (“the 1^st Ground”), in that:-

(a) Madam Lee’s constitutional rights under BL 37, HKBOR 14 and HKBOR 19 were engaged, and the Permanent Secretary was required, but failed, to apply the proportionality test when considering whether or not the Deportation Order should be rescinded or suspended; and

(b) the Permanent Secretary exercised his powers in relation to the issuance, rescission and suspension of deportation orders under the Ordinance in a discriminatory manner, differentiating between (i) persons from the Mainland and (ii) other foreign nationals, married to Hong Kong permanent residents.

(2) The Permanent Secretary failed to make sufficient inquiry into the relevant circumstances of, and/or failed to act fairly when dealing with, the applicant’s case, and failed to take into account relevant considerations (“the 2^nd Ground”).

(3) The Permanent Secretary was over rigid in refusing to consider suspension of the Deportation Order (“the 3^rd Ground”).

(4) The Permanent Secretary’s Decision is unreasonable in the public law sense (“the 4^th Ground”).

1^st Ground: error of law

42.  The applicant’s first contention under this ground is that Madam Lee’s constitutional rights under BL 37, HKBOR 14 and HKBOR 19 were engaged, and thus the Permanent Secretary was required, but failed, to apply the proportionality test when considering whether or not the Deportation Order should be rescinded or suspended.

43.  The argument that the Director or the Permanent Secretary, when considering the removal or deportation of a person who has no right to enter or remain in Hong Kong, are required to take into account or bound to give effect to the family or other similar or associated rights of that person’s spouse under BL 37 or HKBOR 14 or HKBOR 19 has been raised on many previous occasions and has consistently been rejected by the Hong Kong courts.  Mr Ngan (for the applicant) accepts that there are many decisions to this effect, including decisions of the Court of Appeal which are binding on me.

44.  In the recent decision of the Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520, the following propositions were stated:

“92 … it would be helpful if this court were to re-state some general propositions concerning the immigration regime in Hong Kong.

(5) A very important consideration in the application of the principle of legality in the Hong Kong immigration context is the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance (‘HKBORO’). The immigration reservation provides that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong or the application of such legislation. This reservation is constitutionally entrenched by Article 39 of the Basic Law: Ubamaka v Secretary for Security; GA v Director of Immigration; Rbani v Secretary for Justice. Absolute non-derogable fundamental rights aside (namely those protected by art 3 of the Bill of Rights), the Director's exercise of his wide discretion in matters relating to entry into, stay in and departure from Hong Kong cannot be taken as infringement of any other rights under the Bill of Rights.

(6) As discussed in a long line of cases, the Bill of Rights and the Basic Law do not give an applicant who has no right to stay in Hong Kong any right to pre-empt a decision by the Director in not granting him or her a right to remain in Hong Kong.

(7) The cases also established that a family member (who has the right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: Hai Ho Tak v Attorney General; Santosh Thewe v Director of Immigration.

(8) When an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he may do so. If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration…

96 ... Whatever may be the position in England, we must categorically state that as a matter of common law in Hong Kong the right not to be exiled has never been elevated to a right to override immigration control by giving rise to a right of permanent residence to a foreign spouse in order to lead a family life in Hong Kong. The long line of cases mentioned above and the immigration reservation reflects the common law position here. A moment’s reflection on the situation in Hong Kong will lead to the inevitable conclusion that such elevation of an individual’s right to family life will seriously fetter the wide discretion of the Director in immigration control which, as discussed, is essential for the sustainability of Hong Kong as it is. Hong Kong being an open cosmopolitan city, there are many people living here who have family members living elsewhere. Many Chinese residents in Hong Kong have close relatives like spouse, children or parents living in the Mainland. Because of our open policy, there are many foreign nationals who work and settle here. Many of them would also like to bring their close family members to Hong Kong. Our courts have consistently decided in the past that even for such cases, we should leave it to the Director to make decisions based on his immigration policy. In short, a Hong Kong resident does not have any common law entitlement to the grant of right of residence to his or her spouse or other close family members.

97     To sum up, we conclude that as a matter of Hong Kong law, in matters coming within the immigration reservation, namely, in respect of matters which pertain to the Director’s immigration control over the entry into, stay in and departure from Hong Kong, interests in family life (be that of an aspired migrant or his or her family member who is already a resident of Hong Kong) cannot override the general discretion of the Director.”

45.  In an earlier decision of the Court of Appeal in Safder Tehseen v Permanent Secretary for Security, CACV 167/2012 (6 June 2013), at paragraph 54, it was stated that it was well established that in considering deportation, the Permanent Secretary had no general duty to take compassionate or humanitarian factors into account, even where family ties might be affected.  No valid distinction can, in my view, be drawn between the making of a deportation order and the suspension/rescission of a deportation order.

46.  In the recent case of Sabir Mohammed and Another v Permanent Secretary for Security, HCAL 114/2015 (27 January 2017), which also related to a challenge against a decision made by the Permanent Secretary not to rescind a deportation order, it was argued on behalf of the applicant that “the Permanent Secretary in considering the rescission application had a legal obligation to have had regard, and thus give significant weight, to the applicants’ purported rights to family” under (inter alia) BL 37 and HKBOR 14 and HKBOR 19 (paragraph 71).  Au J concluded, however, that the Permanent Secretary was not under any legal obligations to consider such rights in relation to the issue, rescission or suspension of a deportation order (paragraph 74). 

47.  In my view, the applicant’s first contention under this ground is clearly unsound.

48.  The applicant’s second contention under this ground is that the Permanent Secretary exercised his powers in relation to the issuance, rescission and suspension of deportation orders under the Ordinance in a discriminatory manner, differentiating between (i) persons from the Mainland, and (ii) other foreign nationals, married to Hong Kong permanent residents.  It is alleged in paragraph 71B of the draft Amended Form 86 that:-

“Insofar as those from Mainland China but married to Hong Kong permanent residents are concerned, they would not be issued deportation orders even if they commit criminal offences in Hong Kong. Even if deportation orders have been issued in such circumstances, such deportation orders would be rescinded or suspended if they have obtained One‑Way Permit from the Mainland authorities so that such persons would be able to come to Hong Kong for settlement regardless of the fact that they may have committed very serious criminal offences in Hong Kong”

49.  Apart from one example referred to in paragraph 71C of the draft Amended Form 86 (but not supported by any evidence) where a Mainland person who had been convicted of manslaughter in Hong Kong and sentenced to imprisonment for 7 to 8 years was subsequently granted permission to come to Hong Kong for settlement under a One-Way Permit, the applicant has pointed to no other basis in support of the allegation that what is stated in paragraph 71B of the draft Amended Form 86 represents the Permanent Secretary’s policy or practice. In view of the fact that this complaint has only been raised very recently (bearing in mind that the Form 86 was issued nearly one year ago), the Permanent Secretary cannot be criticised for not putting forward full evidence on this issue at the hearing on 10 May 2017.

50.  Assuming, for the sake of argument, that:-

(1) the Permanent Secretary has indeed adopted a policy or practice as alleged in paragraph 71B of the draft Amended Form 86; and

(2) the adoption of such policy or practice amounts to an improper fettering of his delegated discretion under sections 20, 54 and 55 of the Ordinance,

it cannot, in my view, sensibly be argued that the Permanent Secretary should likewise fetter his discretion in favour of other foreign nationals married to Hong Kong permanent residents in order not to discriminate against the latter group of persons.  What the law would require, instead, is that the Permanent Secretary should properly exercise his delegated discretion under those sections in any given case, irrespective of whether the person whose deportation is under consideration comes from Mainland China or some other foreign country.

51.  For the above reasons, I do not consider the 1^st Ground to be reasonably arguable.

2^nd Ground: failure to inquire, to act fairly and to take into account relevant considerations

52.  The applicant relies on two particular matters which it is contended the Permanent Secretary failed to sufficiently inquire into or take into account, or in respect of which he failed to act fairly, when making the Decision, namely:-

(1) the reasonableness of requiring Madam Lee to relocate to Africa to live with the applicant, taking into account matters such as personal safety, financial, cultural and language issues; and

(2) the absence of any threat to the law and order of Hong Kong by the applicant’s presence here, and the low likelihood of his re-offending.

53.  It is clear that both the issues of hardship to Madam Lee and the risk of re-offending by the applicant were considered by the Permanent Secretary when making the Decision.  In paragraph 6 of M.3, the points urged by the applicant’s legal representatives on his behalf were set out, including (i) the necessity to consider the welfare of Madam Lee (sub‑paragraph (b)), (ii) the absence of evidence that the applicant posed any further threat to the security, law and order of Hong Kong (sub‑paragraph (c)), and (iii) the fact that neither the applicant nor Madam Lee could have employment in Gambia and Madam Lee would likely encounter hardship in living in a village (sub-paragraph (d)).  In paragraph 15, it was stated that the recommendation to reject the request for rescission or suspension of the Deportation Order was made “[h]aving considered all circumstances of the case.”

54.  Mr Ngan argues that such general statement is not sufficient to show that the Permanent Secretary properly took those matters into account when making the Decision.  A somewhat similar argument was raised and rejected by the Court of Final Appeal in Safder Tehseen v Permanent Secretary for Security (2014) 17 HKCFAR 567:-

“17 Turning to the ‘or otherwise’ ground of the application, the basis of the applicant’s argument was that, in making a deportation order under section 20(1)(a) of the Immigration Ordinance, the Secretary for Security had to strike ‘a balance between the threat which is posed by the potential deportee’s continued presence in Hong Kong, and the hardship which deportation would cause to him and innocent third parties’. It was contended that it is reasonably arguable that it was wrong for the Court of Appeal to infer or assume that the Secretary for Security had taken into account the circumstances of hardship to the applicant’s wife and children in refusing to suspend or rescind the deportation order in the absence of direct evidence as to the decision-making process…

18 We were satisfied that the relevant internal minute M4, which was exhibited to that affirmation and contained the request to the Secretary for Security for suspension or rescission of the deportation order, set out the relevant factual background of the applicant including the circumstances of his wife and her children and that the consequences to the applicant of executing the deportation order were adequately described so that it is self-evident that the Secretary for Security would, on reading that minute, have had those matters in mind in making a decision on the request for suspension or rescission. The minute is endorsed by the Secretary for Security in confirmation of the rejection of the request. In those circumstances, we did not think it reasonably arguable that the applicant’s family circumstances or the hardship to them if he were to be deported were overlooked in the decision-making process. Contrary to the applicant’s contention, the balancing exercise was self-evidently undertaken.

19 We were therefore satisfied that it was proper and reasonable for the Court of Appeal to conclude that it was apparent that the Secretary for Security took the comments in minute M4, which included details of the applicant’s family circumstances, into account when making the decision sought to be challenged.”

55.  In so far as it is contended that the Permanent Secretary ought to have made further inquiries into the particular hardship that might be faced by Madam Lee if she were required to relocate to Africa and why it would not be reasonable or practical for her to do so, a similar argument was raised and rejected by Au J in Sabir Mohammed.  There, it was argued that “the applicants should have been first informed of the Director’s suggestion or comment that the 2^nd applicant could take the baby and reunite with the 1^st applicant outside Hong Kong should she wish to do so, so that she could properly respond to that” (paragraph 87(1)).  Au J held, however, that:-

(1) “it is up to the applicants to advance all relevant representations and matters which are objectively and reasonably within their expectations to be relevant and of concern to the Permanent Secretary” (paragraph 89); and

(2) “[i]n this respect, it is their own representation in support of the rescission application that they wanted to raise the child in Hong Kong for various reasons.  It must therefore be reasonably within their contemplation that questions might be raised by the Permanent Secretary as to why the child could not be taken outside Hong Kong and reunited with the 1^st applicant.  It is thus up to them to explain in their application the reasons why it is not feasible to do so.  There is no duty or obligation for the Permanent Secretary to raise that question with them, and hence there is no procedural unfairness in this respect” (paragraph 90).

56.  When considering this aspect of hardship, or potential hardship, to Madam Lee consequent upon the deportation of the applicant, one should not lose sight of the fact that at the time of their marriage, Madam Lee was or ought to be fully aware that the applicant had no right of residence in Hong Kong. Furthermore, having regard to the serious nature of the offence of which the applicant had been convicted, Madam Lee could not have any reasonable expectation that the applicant would be granted a dependant visa to permit him to remain in Hong Kong.

57.  It is, ultimately, a matter for the Permanent Secretary to decide how much (if any) weight ought to be given to any particular factor put forth by or on behalf of the applicant in support of his application for rescission or suspension of the Deportation Order (see Sabir Mohammed, paragraph 41).  The Permanent Secretary carried out a proper balancing exercise before coming to the Decision in this case.  I do not see how it can be said that he failed to sufficiently inquire into, or take into account, relevant matters, or act fairly towards the applicant.

58.  Overall, I do not consider the 2^nd Ground to be reasonably arguable.

3^rd Ground: fettering of discretion

59.  The applicant’s compliant is that the Permanent Secretary should, but fail to, give separate consideration to the question of (i) rescission, and (ii) suspension of the Deportation Order.  It is said, from an examination of M.3, that once the Permanent Secretary came to the conclusion that the Deportation Order should not be rescinded, he did not separately consider the possibility of suspension of the Deportation Order, but treated both as being the same.

60.  In my view, this complaint is obviously without merit.  The same matters were advanced by Daly & Associates on behalf of the applicant in the letter dated 8 September 2014 in support of the applications for (i) rescission, and (ii) suspension of the Deportation Order.  There was no suggestion that even if there was insufficient ground to justify the rescission of the Deportation Order, there would nevertheless be good grounds or reasons to suspend the Deportation Order, whether for a definite period, or indefinitely (which would, in practical terms, be equivalent to a rescission of the order).

61.  It seems to me to be clear, from reading M.3 as a whole, that the Permanent Secretary relied on the same grounds to reject the application for rescission, as well as the application for suspension, of the Deportation Order.

62.  The 3^rd Ground is not reasonably arguable.

4^th ground: whether the decision is unreasonable?

63.  In order to make out the complaint that it is unreasonable of the Permanent Secretary not to rescind or suspend the Deportation Order, the applicants have to overcome a high threshold.  It is primarily a matter for the Permanent Secretary to decide how much weight should be given to the various matters relied upon by the applicant in support of his application to rescind or suspend the Deportation Order.  Having regard to (i) the seriousness of the offence for which the applicant was convicted, and (ii) the absence of any material change of circumstances, it was well open to the Permanent Secretary to decide not to suspend or rescind the Deportation Order in the present case.  In my view, the contention that the Decision is unreasonable in the Wednesbury (or public law) sense has plainly no substance.

Overall conclusion on merits

64.  None of the applicant’s proposed grounds of judicial review of the Decision is reasonably arguable, or has any reasonable prospect of success.

Extension of time would not be granted

65.  Having reached the conclusion that none of the applicant’s proposed grounds of judicial review is reasonably arguable, there would be no reason to grant any extension of time for him to apply for leave to apply for judicial review.

DISPOSITION

66.  For the forgoing reasons, I dismiss the applicant’s summons dated 27 April 2017, and decline to grant the extension of time sought by him to apply for leave to apply for judicial review.  I also dismiss his application for leave to apply for judicial review of the Decision.

67.  I order that the applicant shall pay the costs of the Permanent Secretary in respect of the applications dealt with in this judgment, to be taxed if not agreed, because the various intended grounds of judicial review are wholly unmeritorious.

68.  As mentioned in the course of the hearing, I am somewhat concerned as to whether it is proper for those acting for the applicant to raise the ground of discrimination by way of proposed amendments to the Form 86 when there is no apparent factual basis to support the allegation that the Permanent Secretary has adopted any policy or practice as set out in paragraph 71B of the draft Amended Form 86.  I make no finding as to whether some such policy or practice exists in the absence of evidence.  However, the point is not whether such policy or practice in fact exists, but whether it is proper to raise an allegation without basis or foundation.  I have given anxious consideration to the question of whether I ought to allow legal aid taxation in respect of the applicant’s costs incurred in relation to this proposed ground of judicial review.  On this occasion, I am just prepared to make a general order that the applicant’s own costs be taxed in in accordance with legal aid regulations, and I so order.

69.  I take this opportunity to remind practitioners that applications for judicial review are often, as in the present case, litigated on public funds on both sides. The parties are expected to raise and pursue issues reasonably.  The underlying objectives mentioned in Order 1A, rule 1 of the Rules of the High Court, Cap 4A, apply as much to applications for judicial review as they do in relation to other civil litigations.