SAFDER TEHSEEN v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

FAMV No. 31 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 167 OF 2012)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ :

1.  After hearing counsel for the applicant, we did not call on counsel for the respondent and dismissed this application for leave to appeal.  These are our reasons for doing so.

2.  This application arises out of an unsuccessful application for leave to apply for judicial review.

3.  The relevant facts can be shortly stated.  The applicant, a national of Pakistan, is the subject of a deportation order under section 20(1)(a) of the Immigration Ordinance[1] dated 25 April 2005.  This followed his conviction on a charge of conspiracy to steal for which he was sentenced to 7 months’ imprisonment.  The deportation order was not immediately enforced because the applicant made a claim for protection under the United Nations CAT[2], which was eventually dismissed, and, in the meantime, the applicant applied for the deportation order to be suspended or rescinded.  He also, in the meantime, married a Hong Kong permanent resident, who has two young children by another man.  After the dismissal of his CAT claim, the Secretary for Security rejected the application to suspend or rescind the deportation order on 9 May 2012.

4.  It is the rejection of that application that is the subject of the intended application for leave to apply for judicial review.  In the courts below, before Fung J[3] and the Court of Appeal[4], the applicant also challenged the making of the deportation order itself on other grounds but that challenge is no longer pursued.

5.  The application for leave to appeal to this Court is made under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.[5] In the Notice of Motion for leave to appeal, it is contended that the question involved in the appeal is one of great general or public importance or that it ought otherwise to be submitted to the Court for decision.

No question of great general or public importance

6.  The Notice of Motion for Leave to Appeal set out the question involved in the appeal as follows:

“When applying for leave to apply for judicial review in respect of the decision not to rescind or suspend a deportation order made by the Secretary for Security, can a court infer that the required standards of decision-making have been met by the Secretary for Security by relying only upon a hearsay affirmation (and the documents produced under it) made by someone other than the Secretary for Security and who was not in a position to depose to the actual decision-making by the Secretary for Security.”

7.  In applying for leave to appeal to this court in the Court of Appeal, the applicant had advanced a slightly different question, namely whether “a Court should not infer from the materials before it, possible explanations for a decision that a decision maker may or may not rely upon if evidence is later given about the decision-making process, but should, instead, grant leave to [apply for judicial review]”. 

8.  A matter of minutes before the hearing of this application commenced, the Court was informed that the applicant wished instead to contend that the following questions of great general or public importance were involved in the appeal, namely:

“When applying for leave to apply for judicial review in respect of the decision not to rescind or suspend a deportation order made by the Secretary for Security:

(1) Can a court infer that the required standards of decision-making have been met by the Secretary for Security by relying only upon a hearsay affirmation (and the documents produced under it) made by someone other than the Secretary for Security and who was not in a position to depose to the actual decision-making by the Secretary for Security; and

(2) Whether, as a matter of law, the Secretary for Security in considering to rescind or suspend a deportation order under s.54 or s.55 of the Immigration Ordinance, Cap.115, has an obligation to consider humanitarian circumstances, including family ties, in relation to a person who was a Hong Kong resident before the issue of a deportation order made against him.”

9.  It will be seen that question (1) is the same as the question set out in the Notice of Motion but that question (2) is entirely new and additional.  No mention was made in that notice of application of an intention to apply for leave on the basis that the appeal involved that question.  Nor was it referred to in the applicant’s skeleton submissions in support of the application.  Consequently, the respondent had no fore-warning that this new and additional point was to be argued.  On the contrary, the proposition that the Secretary has no general duty to take compassionate or humanitarian factors into account even where family ties might be affected appears to have been conceded by different counsel then appearing for the applicant before Fung J[6] and, although the proposition was squarely relied upon by the Court of Appeal[7], question (2) did not feature in the application made to the Court of Appeal for leave to appeal to this Court.[8]

10.  This is not the way an application for leave to appeal should be made. The proper procedure plainly requires the applicant for leave to appeal to identify and state in his notice of application the grounds of the application and, where one of the grounds relied upon is that a question of great general or public importance is involved in the appeal, that question must be identified in the notice.[9] It should go without saying that producing an amended question, or worse still a wholly new question, at or shortly before the hearing of the application is not a proper way of proceeding.  It is not in accordance with the rules, nor is it helpful or courteous to the Appeal Committee, nor is it fair on a respondent to the application.  Yet last minute variations and additions to grounds of appeal are becoming an all too familiar feature of leave applications.  Normally, a party who pursues an inappropriate procedure can and should be penalised in costs but all too often, particularly in public law cases like the present, this is no deterrent in practice.  It is now high time to issue a reminder to the professions that procedural indiscipline of the sort encountered in the present case is not acceptable and that the proper giving of notice of the grounds of appeal within the time limits set by the rules, extended where appropriate, is to be expected.

11.  In any event, question (2) as lately formulated did not advance the applicant’s case at all.  The main thrust of the applicant’s case is that the Secretary for Security did consider humanitarian considerations but did not properly assess them.  That being so, the contention inherent in question (2), that the Secretary for Security has an obligation to consider humanitarian considerations cannot and does not assist the applicant’s case.

12.  The formulation of question (1) in the Notice of Motion appears to have been advanced in order to meet the criticism of the original formulation of that question set out in paragraph 7 above.  The thrust of that question can be summarised as being whether a court considering an application for leave to apply for judicial review requires guidance on how to treat evidence before it, specifically on the drawing of inferences from evidentiary materials at the leave stage in judicial review.  That is not a question on which we would have been prepared to grant leave to appeal.  Like the Court of Appeal, we do not consider that the courts are in need of general guidance on how evidential materials should be considered and analysed in the context of an application for leave to apply for judicial review.  Nor do we think this becomes necessary in the context of such an application on which the court hears from the putative respondent on what is, in effect, an inter partes hearing. 

13.  In the skeleton submissions filed on his behalf, the applicant also appeared to question the practice of inter partes hearings at the leave stage but there is certainly jurisdiction to direct such a hearing and whether or not the judge to whom the application for leave to apply for judicial review is made will direct an inter partes hearing is a matter of case management. It is certainly not a question of great general or public importance.

14.  Question (1) as now reformulated and set out in paragraph 6 above was, in our view, in substance a fact-sensitive complaint relating to the specific circumstances of this case.  As such, it had no semblance of a question of general or public importance and was certainly not one of great general or public importance.

15.  In response to questions put to him in the course of his submissions, Mr Philip Dykes SC[10] ultimately accepted that question (2) did not arise and that question (1) was really a complaint on the “or otherwise” ground, that the Secretary for Security did not conduct a proper balancing exercise taking into account humanitarian considerations.

16.  For these reasons, we were satisfied there was no substance in the contention that the appeal involved a question of great general or public importance.

No proper basis for leave to appeal and “or otherwise” ground not engaged

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”.[11] 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.[12]  It was further argued that the affirmation relied upon by the putative respondent was one made by an Acting Chief Immigration Officer on behalf of the Director of Immigration and did not therefore represent the decision-making process of the Secretary for Security.  There was therefore, it was argued, no evidence of the balancing exercise that the Secretary for Security was required to undertake.

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.

20.  The further argument based on the absence of direct affirmation evidence that the Secretary for Security took the applicant’s family circumstances into account was not one which we considered to be reasonably arguable.  This is not a case where the only affirmation evidence was arguably inconsistent with the position reflected in the underlying contemporaneous documentation.

21.  For these reasons, we were not satisfied that the applicant’s arguments met the threshold for the exceptional grant of leave on the “or otherwise” ground.

Conclusion

22.  We therefore dismissed the application for leave to appeal.