VU VAN KHANH v. PERMANENT SECRETARY FOR SECURITY

HCAL 2179/2019

[2019] HKCFI 1955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2179 OF 2019

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge a deportation order (“the Deportation Order”) issued by the Permanent Secretary for Security (“the Permanent Security”) on 21 March 2019 requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter. In his Form 86, the Applicant seeks the following relief: (i) a declaration that the Deportation Order is null and void and of no effect; and (ii) an order of mandamus to compel the Director of Immigration (“the Director”) to consider the Applicant’s application for entry dependant visa in accordance with the law or his legitimate expectation.

2.  The Applicant is a non-refoulement claimant, having entered Hong Kong illegally on or about 16 December 2014.  His non-refoulement claims on all applicable grounds were rejected by the Director on 12 November 2015 and 24 October 2016.  His appeal or petition against the Director’s rejection of his non-refoulement claims to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”) was rejected on 9 February 2017.  On 3 November 2017, the Applicant made an application for leave to apply for judicial review of an unidentified decision of the Director (HCAL 843/2017). That application was dismissed by this court on 24 January 2018.  On 7 May 2018, the Court of Appeal dismissed the Applicant’s appeal against this court’s decision of 24 January 2018 (CACV 22/2018).  On 6 August 2018, the Court of Appeal dismissed the Applicant’s application for leave to appeal against the Court of Appeal’s judgment of 7 May 2018.

3.  According to the Applicant, on 22 July 2018, he got married in Hong Kong with a Hong Kong permanent resident.  On or about 10 October 2018, he applied to the Director for entry dependant visa to join his wife for residence in Hong Kong.  However, he was informed by the Director on 4 April 2019 that his application for a dependant visa would not be considered due to the fact that he was subject to a deportation order which had been issued against him on 21 March 2019.

4.  In his Form 86, the Applicant set out his proposed grounds of judicial review of the Deportation Order, as follows:

(1)  the Permanent Secretary failed to give full consideration of his alleged rights under BL 37 and 39, HKBOR 14 and 19, ICCPR 17 and 23, and ICESCR 10;

(2)  the Permanent Secretary failed “to evaluate on proportionality analysis and to achieve on Wednesbury reasonableness one or more of the legitimate aims recognized by the BL, HKBORO, ICCPR and ICESCR in guaranteeing the Applicant’s right to family and marriage before issuing the Order”;

(3)  the Permanent Secretary failed “to evaluate on proportionality analysis and to take into account on Wednesbury reasonableness the family unit as a whole … and to consider family rights holistically not separately as these are the … Rights of the Applicant recognised by the BL, HKBORO, ICCPR and ICESCR before issuing the Order”;

(4)  the Permanent Secretary failed “to evaluate on proportionality analysis and to facilitate on Wednesbury reasonableness the family reunion recognised by the BL, HKBORO, ICCPR and ICESCR thereby failing to give effect to the Applicant’s legitimate expectation thereof before issuing the Order”;

(5)  the Permanent Secretary failed “to evaluate on proportionality analysis and to give sufficient consideration on Wednesbury reasonableness of the particular individual circumstances of the Applicant all the relevant considerations, including the country information relevant to notorious police force and the prison authority in Vietnam if the Arrest Warrant is executed against the Applicant …”; and

(6)  the Permanent Secretary “on procedural impropriety and unfairness failed to consider first the Applicant’s application for the dependant visa with reference to the particular individual circumstances of the Applicant and the Sponsor and all the relevant considerations and policy for granting the dependant visa before considering the issuance of the Order according to a high standard of fairness bearing in mind the Applicant had applied for the dependant visa before the issuance of the Order”.

5.  The Applicant’s affirmation filed in support of the leave application on 31 July 2019 merely exhibited a number of documents, but contained no elaboration of the various proposed grounds of judicial review.  Significantly, there was nothing to suggest that the statutory conditions for the issuance of a deportation order under Section 20(1) of the Immigration Ordinance (Cap 115) against the Applicant were not satisfied in the present case.

6.  In so far as the Applicant’s proposed grounds of judicial review of the Deportation Order are based on his alleged family, marriage or related rights under BL 37 and 39, HKBOR 14 and 19, ICCPR 17 and 23, and/or ICESCR 10, it is now clear from the judgment of the Court of Final Appeal in Comilang v Director of Immigration [2019] HKCFA 10 that such grounds are unsustainable.

7.  In so far as the Applicant’s proposed grounds of judicial review of the Deportation Order are based on the alleged risk of harm or injury to him upon his return to Vietnam, that matter was dealt with and concluded by the Director and TCAB when assessing his non-refoulement claims and by the courts when dealing with his previous application for leave to apply for judicial review.

8.  In so far as it is said that the Deportation Order was issued after the Applicant had made an application for a dependant visa, I do not consider that the existence of a prior application for a dependant visa would preclude the Permanent Secretary from issuing the Deportation Order.  The existence of an application for a dependant visa was a consideration which the Permanent Secretary might take into account and give it such weight as he considered to be appropriate in the circumstances, but was not an overriding consideration.

9.  As a matter of law, so long as there is in force a deportation order issued against a person, the Director is precluded from granting a dependant visa to that person.  See Sah Shiv Kumar v The Director of Immigration [2019] HKCFI 796:

[14] It is not in dispute that the Applicant has been convicted of an offence which is punishable with imprisonment for not less than 2 years. Accordingly, the Permanent Secretary for Secretary, acting under the delegated authority of the Chief Executive, was lawfully empowered to make the Deportation Order for life against the Applicant under Section 20(1) of the Ordinance on 6 October 2017.

[15] The Deportation Order was in force against the Applicant as at the date of his application for a dependant visa on 6 February 2018. Under Section 20(7) of the Ordinance, a deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or where it is in force. It follows that the Director was plainly correct not to consider the Applicant’s dependant visa application, or grant a dependant visa to him. Indeed, it would be futile to do so, because any such visa would be invalidated as soon as it is granted by virtue of Section 20(7) of the Ordinance.

[16] In KC v Director of Immigration, HCAL 413/2018 (16 October 2018), this court held, at paragraph 29(1) of its judgment, that Section 38AA(1)(b) of the Ordinance, which imposes a strict prohibition against any person in respect of whom a removal order is in force from taking any employment in Hong Kong, means that so long as the removal order remains in force, it would not be open to the Director to grant to that person an employment visa. I consider that a similar reasoning is applicable in the present situation: so long as a deportation order is in force against a person, the Director cannot grant to that person any visa to enter or remain in Hong Kong.

10.  The fact that the Deportation Order was issued after the Applicant had made the application for a dependant visa did not, in my view, preclude the Director from taking the Deportation Order into account when considering the dependant visa application.

11.  It is no part of the court’s functions, in an application for judicial review, to re-examine the Permanent Secretary’s decision afresh.  The court can only intervene where his decision is unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.  At the leave stage, the court has to consider, on the basis of the materials before it, whether the Applicant has shown that his intended application for judicial review is reasonably arguable with a realistic prospect of success.  The burden is on the Applicant to put before the court sufficient materials for this purpose.  The materials currently before the court do not show any reasonable grounds for contending that the Permanent Secretary’s decision is unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.

12.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success. Accordingly, the application for leave to apply for judicial review is dismissed, with no order as to costs.