SAFDER TEHSEEN v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

CACV 167/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 167 OF 2012

(ON APPEAL FROM HCAL NO. 75 OF 2012)

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BETWEEN

SAFDER TEHSEEN Applicant
and
PERMANENT SECRETARY FOR SECURITY 1st Respondent
DIRECTOR OF IMMIGRATION 2nd Respondent

________________________

Before : Hon Lam VP, Kwan JA and McWalters J

Dates of Written Submissions : 14 and 27 February 2014, 13 March 2014
Date of Judgment : 7 May 2014

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JUDGMENT

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Hon Kwan JA (giving the Judgment of the Court):

1. On 6 June 2013, we dismissed the applicant’s appeal against the decision of Fung J in refusing him leave to apply for judicialreview. It was acknowledged before us that the original grounds for judicial review argued before the judge are plainly not arguableand are misconceived. An application was made before us to amend Form 86 to raise three new grounds in substitution, see §3 of ourjudgment (“the Judgment”). As we took the view that none of the three new grounds are reasonably arguable, we refused leave toamend the form and dismissed the appeal as leave to apply for judicial review must be refused.

2. The applicant has applied for leave to appeal to the Court of Final Appeal, on the ground that the intended appeal involves a questionof great general or public importance. He also relies on the “or otherwise” limb.

3. These questions are raised in his Notice of intended application for leave to appeal:

“1. Whether on a proper application of the threshold test for an application for leave to judicial review under O. 53, r. 3 of theRules of the High Court, Cap. 4A (“RHC”), a Court should not infer from the materials before it, possible explanations for adecision 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 permit the applicant to commence proceedings under O. 53 r. 5(5); and

2. If Question 1 is answered in the affirmative, whether the Court of Appeal erred in refusing to grant leave to judicial review byinferring from the materials before it that the Secretary definitely ascertained and then took into account the Applicant’s relationshipwith his step-children and the consequences of deportation on that relationship.”

4. Mr Earl Deng served two submissions in support of this application citing no less than 18 authorities.

5. Stripped of all technicalities, the propositions advanced by Mr Deng in the proposed appeal may be stated as follows.

6. At the stage of seeking leave to apply for judicial review, when not the entire evidence from the putative respondent is beforethe court, such as an affidavit from the decision-maker to explain the decision-making process, generally the court should not drawinference from the materials before it as to what the decision-maker has or has not taken into account. Leave to apply for judicialreview should be granted, otherwise the threshold test of being reasonably arguable would be raised so high that it would effectivelydeny an applicant access to the court.

7. The respondent should then file evidence in opposition. In an appropriate case, the respondent could apply to set aside the grantingof leave under Order 53 rule 13. Otherwise, the application for judicial review should proceed to a hearing and it is only thenthat the court is to inquire into the decision-making process and undertake forensic analysis of the evidence.

8. These contentions were not raised on appeal.

9. Mr Deng’s submission is that this court is wrong to hold on the evidence that the Permanent Secretary for Security, in acceptingthe recommendation of the Director of Immigration in Internal Minutes M4 and making a decision to refuse to suspend the deportationorder against the applicant, did not overlook any relevant consideration (§§52 to 57 of the Judgment). He made the point thatthe Secretary has not yet made any affidavit deposing to his decision-making process. He argued that the statement in Internal MinutesM4 §14 that the Director has considered the representations made by the applicant, his wife and his legal representative is justa “general formulaic answer”.

10. We are not minded to exercise our discretion to grant leave to appeal on the two questions raised by the applicant. We agree withMr Abraham Chan that the applicant is advancing a fact-specific complaint dressed up as a general question of principle. We do notthink the courts are in need of general guidance how evidential materials should be considered and analysed in the context of a leaveapplication for judicial review. What the court can or cannot properly infer from the materials placed before it at the leave stagemust depend on the materials in question and the context of the particular case. Mr Deng acknowledged in his submission he is notproposing that the court should suspend common sense or its judicial function at the stage of the leave application for judicialreview.

11. We do not see any basis to take the exceptional course of granting leave to appeal on the “or otherwise” limb.

12. For the above reasons, we dismiss the application for leave to appeal. We make an order nisi that the applicant is to pay the respondents’ costs of this application.

(M H Lam)
Vice President
(Susan Kwan)
Justice of Appeal
(Ian McWalters)
Judge of the
Court of First Instance

Mr Earl Deng, instructed by Francis Kong & Co, for the Applicant (Applicant)

Mr Abraham Chan, instructed by Department of Justice, for the 1st & 2nd Respondents (1st & 2nd Respondents)

Please refer to FAMV31/2014 for the relevant appeal(s) to the Court of Final Appeal.