LUONG VIET LOC v. HKSAR AND ANOTHER

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ADMINISTRATIVE LAW PROCEEDINGS NO.96 OF 1998

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J U D G M E N T

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1. This is an application for leave to apply for judicial review of the decision of the Secretary for Security to refuse to rescind a deportation order. There was also before me an application to review a decision of an immigration officer to institute criminal proceedings against the applicant. That application is not now pursued and, accordingly, leave is not granted in that regard.

2. The applicant came to Hong Kong in July 1988 as an asylum seeker. He met a lady called Pham Thi Toan, whom I shall refer to as his wife though they have not married. They have a child who is now aged seven years. Both the applicant's claim and that of his wife for refugee status failed, and they were held in detention pending repatriation to Vietnam. The applicant twice escaped from custody and was sent to prison for doing so and also for possession of a forged refugee card. The wife also escaped from detention. During the period in which the two of them were at large, the child remained behind in a camp, apparently in the care of an aunt.

3. In January 1997, whilst the applicant and his wife were at large after their escape, the child was returned to Vietnam with the applicant's sister who had applied for voluntary repatriation.

4. In August 1997, the applicant was arrested, and in September his wife surrendered. She was released in January 1998 because the Vietnamese authorities would not accept her back since she was not shown to be a Vietnamese national.

5. In March 1998, towards the end of one of the sentences of imprisonment imposed upon the applicant, a deportation order was made in respect of him which was effected in April 1998. So he then found himself in Vietnam. He says that household registration had been refused for his daughter and so he returned with her to Hong Kong to enable her to be with her mother. He came back to Hong Kong about one month after he had been deported and he surrendered to the authorities three days after his return.

6. The applicant sought a rescission of the deportation order although it appears that the Secretary for Security had said that he would allow the child to live with her mother in Hong Kong.

7. Upon the request by those acting for the applicant for a rescission of the deportation order, the Secretary for Security wrote on 2nd September 1998 saying as follows:

" One of the grounds put forth in your letter is that your client's deportation would separate him from his cohabitant Ms Pham Thi Toan, who has been classified as a 'non-national' by the Vietnamese authorities and, as such, cannot return to Vietnam with your client and their daughter. ...

However, I understand that Ms Pham was classified as a 'non-national' because the Vietnamese authorities were unable to determine Ms Pham's national status due to her escape or absence from the detention centre where the Vietnamese authorities were conducting their enquiries, during the period from March 1996 to September 1997. The Director of Immigration has now requested the Vietnamese delegation to review Ms Pham's case in the light of the up-to-date information that has been provided to them and is awaiting their reply.

In the circumstances, it seems appropriate that the determination of your client's petition should be deferred pending the Vietnamese authorities' decision on Ms Pham's national status. However, if your client wishes the petition to be considered now, we may do so on the basis of the information available, including the fact that Ms Pham's national status is undetermined."

8. The offer was turned down by those acting for the applicant, generally speaking on the basis that if the Vietnamese authorities had wished to interview the wife, then they could have done that over the last 12 months. I am bound to say that I find that an odd response. Here was the Secretary for Security offering to wait and see whether now the Vietnamese authorities would take the wife back before making a final decision, and here was the applicant, through his solicitors, saying no, he wanted a decision of his deportation status immediately.

9. The grounds advanced by Mr Harris who appears today on behalf of the applicant for his application for leave are these : first, he says that it was Wednesbury unreasonable for the Secretary for Security to take the stand that he has taken, particularly because the effect of the decision is to split the family, very likely for a considerable period of time. The answer to that, in my judgment, is that it cannot conceivably be said to be Wednesbury unreasonable when the Secretary for Security has himself offered to delay the decision until the Vietnamese authorities have reviewed the wife's status at the request of the Director of Immigration. Nor, in my judgment, in light of the history of this case, particularly the applicant's flouting of the deportation order can his attitude be said to be Wednesbury unreasonable.

10. Secondly, it is said that there is, on the part of the applicant, a legitimate expectation that the HKSAR Government would uniformly apply a policy of not splitting families and he prays in aid cases similar to that of the applicant where those males returning from Vietnam, having similar circumstances, had not been re-returned to that country, though it is not suggested that in any such case the returnee was also a deportee.

11. I doubt whether there can be any legitimate expectation that in no circumstances will the Government take a decision which will result in the splitting of a family. As most it seems to me there may be a right or an expectation that in all such cases, the HKSAR Government will give considerable and weighty consideration to questions of family coherence and its signal importance. But in any event it cannot surely be an expectation that the Government will allow matters to stand willy-nilly despite the flouting of a deportation order. And furthermore, it is difficult to see, even if there were some blanket substantive policy, that it does not allow of the response in this case which has been that the immigration authorities are prepared to wait until the Vietnamese authorities have conducted their inquiries. It seems to me that the Secretary for Security, on the evidence before me, has quite clearly given considerable weight to the question of family unity.

12. The test at this stage is whether there has been made out an arguable case for relief; is there made out a prima facie case that something has gone wrong which might call for the exercise of the judicial review discretion? In my judgment, a prima facie case of this kind has not been made out and the application for leave to apply is refused.