MI AND ANOHTER v. PERMANENT SECRETARY FOR SECURTIY

MI AND ANOHTER v. PERMANENT SECRETARY FOR SECURTIY

The Permanent Secretary lawfully exercised his delegated discretion; the applicants' proposed grounds were not reasonably arguable because family and other representations were considered, no procedural unfairness occurred, an outstanding non‑refoulement claim was not material to rescind the deportation order, no Wednesbury unreasonableness was shown and no evidence of discriminatory practice was established; accordingly extension of time, leave to amend and leave for judicial review were refused and the substantive application dismissed.

Citation
MI AND ANOHTER v. PERMANENT SECRETARY FOR SECURTIY
Parties
1st Applicant: MI; 2nd Applicant: IYW; Putative Respondent: Permanent Secretary for Security
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 May 2017
Case Number
HCAL44/2016
Procedural Posture
Judicial Review (application for Rescission of Deportation Order) / Application for Extension of Time and Leave to Apply for Judicial Review Heard Rolled Up With Substantive Review; Disposed at First Instance
Outcome
Extension of time refused; application to amend Form 86 refused; leave to apply for judicial review refused; substantive application dismissed.
Legal Topics
Deportation, Rescission of Deportation Order, Procedural Fairness, Wednesbury Unreasonableness, Discrimination, Family Rights, Extension of Time
Source Language
EN
Immigration Law Constitutional Law Administrative Law Human Rights Law Deportation Rescission of Deportation Order Procedural Fairness Wednesbury Unreasonableness +3 more

Case Brief

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Parties

MI

1st Applicant

IYW

2nd Applicant

Permanent Secretary for Security

Putative Respondent

Procedural Posture

Judicial Review (application for Rescission of Deportation Order) / Application for Extension of Time and Leave to Apply for Judicial Review Heard Rolled Up With Substantive Review; Disposed at First Instance

Legal Issues

  1. 1 Whether the Permanent Secretary unlawfully imposed an 'exceptionality' threshold for rescission
  2. 2 Whether the Permanent Secretary failed to consider Article 37 Basic Law family and marriage rights
  3. 3 Whether the refusal was procedurally unfair (failure to give notice of criteria and failure to allow representations on relocation)

Ratio Decidendi

The Permanent Secretary lawfully exercised his delegated discretion; the applicants' proposed grounds were not reasonably arguable because family and other representations were considered, no procedural unfairness occurred, an outstanding non‑refoulement claim was not material to rescind the deportation order, no Wednesbury unreasonableness was shown and no evidence of discriminatory practice was established; accordingly extension of time, leave to amend and leave for judicial review were refused and the substantive application dismissed.

Court Disposition

Extension of time refused; application to amend Form 86 refused; leave to apply for judicial review refused; substantive application dismissed.

Orders

  • The applicants shall pay the costs of the Permanent Secretary, to be taxed if not agreed
  • The applicants' own costs to be taxed in accordance with legal aid regulations