M v. SECRETARY FOR SECURITY AND OTHERS

M v. SECRETARY FOR SECURITY AND OTHERS

The court held that M (HCAL 1034/2021) failed to establish that the VIS process or investigative duty under BOR4 was unlawfully applied and refused extension/leave for all grounds; N (HCAL 961/2021) established breach of the HKSARG's own VIS policy in relation to Tier2 screening (Ground 1) so extension and leave were granted on that ground and substantive breach of policy was found, but the court exercised discretion to withhold further relief as no practical benefit would follow; claims that BOR4 requires bespoke criminal offences or that undomesticated international conventions impose domestic legislative obligations were rejected as not reasonably arguable.

Citation
[2024] HKCFI 1983
Parties
Applicant: N; Applicant: M; 1st Putative Respondent: Secretary for Security; 2nd Putative Respondent: Commissioner of Police; 3rd Putative Respondent: Commissioner of Customs and Excise; 4th Putative Respondent: Director of Immigration; 5th Putative Respondent: Commissioner for Labour
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 July 2024
Case Number
HCAL1034/2021
Procedural Posture
Judicial Review Constitutional and Administrative Law / Decision on Extension of Time, Leave to Apply for Judicial Review and Substantive Review (judgment)
Outcome
HCAL 961/2021 (N): extension of time and leave to apply for judicial review granted for Ground 1; substantive breach of VIS policy established but no substantive relief granted in exercise of discretion. HCAL 1034/2021 (M): extension of time and leave to apply for judicial review refused for all grounds.
Legal Topics
Victim Identification Screening (vis), Trafficking in Persons (tip), Forced or Compulsory Labour (bor4), Positive Investigative Duty, Procedural Legitimate Expectation, Need for Bespoke Offences, Interpretation of International Instruments
Source Language
EN
Constitutional Law Administrative Law Human Trafficking Labour Law Immigration Law Criminal Law Victim Identification Screening (vis) Trafficking in Persons (tip) +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

N

Applicant

M

Applicant

Secretary for Security

1st Putative Respondent

Commissioner of Police

2nd Putative Respondent

Commissioner of Customs and Excise

3rd Putative Respondent

Director of Immigration

4th Putative Respondent

Commissioner for Labour

5th Putative Respondent

Procedural Posture

Judicial Review Constitutional and Administrative Law / Decision on Extension of Time, Leave to Apply for Judicial Review and Substantive Review (judgment)

Legal Issues

  1. 1 Whether VIS (Tier1/Tier2) was conducted in accordance with published policy and procedures
  2. 2 Whether VIS procedure breached applicants' procedural legitimate expectation or was procedurally unfair
  3. 3 Whether the HKSARG breached its positive investigative duty under Article 4 of the Hong Kong Bill of Rights (BOR4)

Ratio Decidendi

The court held that M (HCAL 1034/2021) failed to establish that the VIS process or investigative duty under BOR4 was unlawfully applied and refused extension/leave for all grounds; N (HCAL 961/2021) established breach of the HKSARG's own VIS policy in relation to Tier2 screening (Ground 1) so extension and leave were granted on that ground and substantive breach of policy was found, but the court exercised discretion to withhold further relief as no practical benefit would follow; claims that BOR4 requires bespoke criminal offences or that undomesticated international conventions impose domestic legislative obligations were rejected as not reasonably arguable.

Court Disposition

HCAL 961/2021 (N): extension of time and leave to apply for judicial review granted for Ground 1; substantive breach of VIS policy established but no substantive relief granted in exercise of discretion. HCAL 1034/2021 (M): extension of time and leave to apply for judicial review refused for all grounds.

Orders

  • Grant extension of time and grant leave to apply for judicial review on Ground 1 in HCAL 961/2021
  • Refuse extension of time and refuse leave to apply for judicial review for all grounds in HCAL 1034/2021