Chen Chiu Lin v. The Director of Immigration

CACV000020/1986

BETWEEN:

Coram: Roberts, C.J., Silke, J.A. & Power, J.

Date: 28 February 1986

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JUDGMENT

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Roberts, C.J.-

1. Mr. CHEN Chiu-lin applied, by way of judicial review, for orders quashing a decision of the Immigration Tribunal of 29th March, 1985 and prohibiting the Deputy Director of Immigration from executing an order, dated 5th March, 1985, for the removal from Hong Kong of CHAN Wa-yung, a 15 year old girl and one of the four daughters of the applicant.

2. The matter came before a High Court Judge who dismissed the application on the 14th January, this year, and it is against that decision that the father of the girl appeals to us.

3. It is necessary to deal briefly with the family history. The father and mother were already residents in Hong Kong when their four daughters, then aged between 10 and 14, entered Hong Kong illegally on 20th October, 1984. The applicant went to the Immigration Department, with the four girls, three days' later and admitted that his daughters had entered Hong Kong illegally. He was given a simple form of receipt and advised that he would be required to attend the Immigration Department for further enquiries in due course.

4. He and his daughters were interviewed on 3rd December, by Mr. Ko, of the Immigration Department. He made inquiries about the age of CHAN Wa-yung, the girl with whom we are concerned, who was born on 6th August, 1970.

5. The applicant returned to the Immigration Department with them on 6th February, when each of the daughters was given an application form to register for Hong Kong identity cards.

6. On the 26th February, at a further interview, Mr. CHOW Kwok-chuen, a Chief Immigration Officer, told the applicant, according to the affidavit sworn by him on 28th November, 1985, that the three other daughters would be allowed to stay but that he was not satisfied as to the age of Wa-yung. On the same date, Mr. Chow signed an order for the detention of Wa-yung, on the grounds that she was an illegal immigrant from China who might abscond if she knew that she would face removal.

7. On 5th March, the Deputy Director of Immigration made a removal order against Wa-yung and a Notice of Removal Order and Right of Appeal was served on her on 7th March. Attached to this Notice was a "summary of facts and reasons for removal", which set out briefly the girl's family history, adding that her three other sisters, aged 13, 12 and 10 were also illegal immigrants and that their cases were being dealt with separately.

8. Notice of appeal against the removal order was entered on behalf of Wa-yung on 8th March. A hearing of the appeal was conducted on 29th March by the Immigration Tribunal which dismissed it, the Tribunal finding that the girl had no right to land in Hong Kong nor the permission of the Director of Immigration to remain. The Tribunal forwarded the notice of appeal and related papers to the Secretary for Security, for his consideration of the other matters disclosed in the appeal, on 29th March. Wa-yung was kept in custody from 26th February until 10th August when she was released on a recognizance entered by the applicant.

9. Although this 14 year old girl had been in custody for over five months, it was not until 20th November, almost 8 months after the matter had been referred to him, that the Secretary for Security informed the girl's counsel that he had reviewed the case and had decided to uphold the Director of Immigration's decision to make a removal order against her.

10. It was no doubt in consequence of this letter, that the applicant decided to seek another remedy and initiated his application for a judicial review on 5th December.

11. In support of the appeal against the judge's decision three legal submissions were made. The first was that the judge was wrong to find that no consent to remain had been implied by virtue of inaction by the Director or his staff, although the applicant was allowed to remain in Hong Kong between 23rd October, 1984 and 7th March, 1985, free of any conditions of stay.

12. The submission can succeed only if the proposition is accepted that if a statutory power is conferred upon a public officer and he does not exercise it within a reasonable period, he shall be deemed to have decided not to do so, even though the relevant Ordinance prescribes no time limit for its exercise.

13. Counsel was unable to draw our attention to any authority in support of such a proposition, which we reject, as did the Judge in this application and Mantell, J. in Re WONG Shu-hung⁽¹⁾.

14. The second argument was that the judge was wrong to find that Mr. Ko and Mr. Chow lacked authority to give Wa-yung permission to stay in Hong Kong.

15. In our view, this question does not arise on this appeal. The applicant's affidavit does not assert that either Mr. Ko or Mr. Chow had purported to give Wa-yung permission to stay. Paragraph 7, while it claims that Mr. Chow told the applicant that his three younger daughters would be allowed to stay, makes no such claim with regard to Wa-yung.

16. It is thus not necessary for us to consider what the effect would have been if Mr. Chow had promised that Wa-yung should stay. We note, however, that we see no substance in the submission that because he was making enquiries into her case he must have had authority to grant her permission to remain.

17. The final argument was that the respondent was estopped from making a Removal Order against Wa-yung, becaused no action has so far been taken to remove the three younger sisters from Hong Kong.

18. There is no substance in this proposition. The power of the Director is separately exercised in each case. Furthermore, he would be failing in his duty if he did not exercise it in accordance with the circumstances of the individual concerned. While his decision with regard to the other three sisters may have persuasive effect in humane terms, it is irrelevant in law.

19. The stating of this ground, however, led to the disclosure that no decision has yet been made by the Director as to whether the three sisters shall be allowed to remain in Hong Kong or not, although they have been in Hong Kong for over 16 months and completed application forms for identity cards over a year ago.

20. We enquired of counsel for the Director as to the reasons for the two lamentable delays; one of almost eight months between the decision of the Immigration Tribunal and that of the Secretary for Security to uphold the Removal Order; the other of over a year, since the application of the sisters for identity cards, during which time no decision had been reached as to whether they could stay.

21. The only explanation offered was that the delays may have been due to a change of policy being considered. This is not a convincing reason, since a public officer who is performing a statutory function cannot properly stop exercising it for a long period on the ground that consideration is being given as to how he shall exercise it in future.

22. In our judgment; these long delays, for which no sensible explanation has been offered, show a serious disregard for humanitarian considerations which does no credit to those involved.

23. The Director asked for the costs of this appeal. We felt obliged to award them to him, solely because the legal arguments put forward on behalf of the applicant were without merit.

(1)    M.P. 228 of 1985.

Representation:

Mr. N. Persaud (R.J. Oliver) for Appellant

Mr. B. Whaley, S.C.C., for Respondent (Crown Solicitor)