Kamran Javid v Permanent Secretary for Security [2025] 5 HKC 1027, [2025] HKCA 731 (Philip J Dykes SC)
Philip J Dykes SC represented the Applicant in Kamran Javid v Permanent Secretary for Security [2025] 5 HKC 1027, [2025] HKCA 731.
The applicant, who was subject to a lifelong deportation order dated 30 May 2000 (the ‘Deportation Order’), applied for leave to apply for judicial review of the decisions of the Permanent Secretary for Security of 20 January 2023 and 27 March 2023 refusing to suspend or rescind the Deportation Order (respectively ‘the 1st Decision’ and ‘the 2nd Decision’, and collectively ‘the Decisions’). The applicant also claimed the Permanent Secretary failed to consider his alternative request to shorten the Deportation Order’s duration. A judge of the Court of First Instance refused leave to apply for judicial review in part and dismissed the application where leave was granted. The applicant appealed to the Court of Appeal, by challenging the judge’s dismissal of two of his grounds for review, by advancing three grounds, namely (i) the judge erred in law in confining the requirement for consistent treatment in public decision-making to situations where ‘two different persons make similar applications on similar facts’ when the principle is not so confined (‘Ground 1’); and (ii) the judge erred in his finding that there was a material change of the applicant’s personal circumstances due to the passage of time as it was not supported by any evidence (‘Ground 2’); (iii) the judge erred in finding that the Permanent Secretary had in the 2nd Decision considered the applicant’s request to shorten the period of the Deportation Order as it was not supported by the evidence (‘Ground 3’). In addition, the applicant also applied to adduce his affirmation to clarify a ‘sham divorce’ reference in a previous letter.
Held, unanimously, dismissing the appeal and the summons:
(1) The judge below did not restrict the principle of consistency to only where there were two different persons making similar applications on similar facts, but only observed that most of the authorities on the issue involved such a scenario. Ground 1 was advanced based on a misreading the judgment of the judge below (paras 42-48).
(2) There was no error in the judge’s finding that there was a material change in the applicant’s personal circumstances due to the passage of time. Ground 2 should therefore be rejected. The Permanent Secretary had no legal obligation to consider compassionate and humanitarian grounds in considering whether to rescind or suspend a deportation order, and even if she did consider these, a very high hurdle would need to be overcome for the court to interfere with her decision on the basis of irrationality/ Wednesbury unreasonableness. In light of available evidence, there was sufficient evidence to support the judge’s conclusion that the applicant’s circumstances had materially changed, justifying the refusal to suspend or rescind the Deportation Order. Sabir Mohammed v Permanent Secretary for Security [2017] HKCU 247 (HCAL 114/2015, Au J, 27 January 2017, unreported) and BI v Director of Immigration [2017] 3 HKC 147 ; [2016] 2 HKLRD 520 ; (2017) 22 HKPLR 1 considered (paras 30-41).
(3) The judge correctly found that the Permanent Secretary’s refusal to suspend or rescind the lifelong Deportation Order had in substance already refused to shorten its duration, as a request to shorten the order was effectively asking to have the order terminated within a period of time, which was an even more favorable outcome than suspension. Remitting the request to shorten the Deportation Order for reconsideration would be futile. Ground 3 should therefore be rejected (paras 49-54).
(4) The summons was dismissed as the affirmation intended to be adduced by way of the summons addressing a ‘sham divorce’ reference in the Costs Ruling was irrelevant to the appeal (paras 53-55).
[The above is excerpted from the headnote to the report in HKC.]