Case Summary for: AKRAM MUHAMMA V. DIRECTOR OF IMMIGRATION AND ANOTHER

In this case with respect to the application for leave to apply for judicial review, the Court held that (i) the relevant subsidiary legislation in question enacted within the scope of power of the enabling statute is not subject to judicial review on the ground of irrationality and (ii) the differential treatment on immigration detainees in TTG and CIC did not constitute an unlawful discriminatio. [...] However, given the 3 Applicant was not challenging a policy (as in QT v Director of Immigration2 (“QT”)) adopted by the Secretary/the Director in managing TTG, nor the primary legislation enabling the subsidiary legislation, the Court was of the view that this case involves the question whether the Court can, by invoking its judicial review powers, invalidate the subsidiary legislation on the grou. [...] In conclusion, the Court held that the detention treatment in TTG and CIC do not violate the principle of equality and there is no unreasonableness in the legislative scheme to make the scheme ultra vires. [...] The Court would consider whether the differential treatment (1) pursues a legitimate aim, (2) is rationally connected to the legitimate aim, (3) is no more than necessary to accomplish the legitimate aim, and (4) strikes a reasonable balance between societal benefits of the encroachment on the one hand, and the inroads into constitutionally protected rights of the individual on the other. [...] (6) The current inconsistency between treatment of TTG detainees and of CIC detainees is temporary and the Court understood that the Hong Kong government would soon amend the 115E Order to confer on the Department of Immigration the powers relating to body cavity search, urine examination and disciplinary actions and punishment in the first half of 2023.