Yin Xiang-jiang Simon and Others v. Director of Immigration

CACV000218/1993

1993, No. 218
(Civil)

H E A D N O T E

Immigration - treaty obligations - statelessness

IN THE COURT OF APPEAL

1993, No. 218
(Civil)

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Coram: Bokhary, J.A., Mortimer, J.A. and Liu, J.

Dates of hearing: 21 and 22 June 1994

Date of judgment: 22 June 1994

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J U D G M E N T

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Bokhary, J.A.:

1. This is the judgment of the Court.

2. We are concerned with a family, the Yins, consisting of a young couple and two small children. They are of the Chinese race. But they are - or at least might be - now stateless. They wish to remain in Hong Kong. But the Director of Immigration is not prepared to let them do so. And that difference has led to this litigation.

3. The story begins in April 1991. The Yins were then in China. At the time, they were a family of three. There was one child, a son. The fourth member of the family, a daughter, had not yet been born. Anyway, Mr Yin learned of a scheme under which the African State of Lesotho would grant citizenship to investors and their dependants.

4. He went in for the scheme. He dealt with Lesotho's then consular representative in Hong Kong. The family, then of three, arrived in Hong Kong, travelling on Chinese passports. The necessary investment was made. Or, at any rate, the required sum was paid. And Lesotho certificates of naturalisation and passports were issued to the Yins in June 1991.

5. Thereafter, the Yins surrendered their Chinese documents of identity and travel documents. And they travelled on their Lesotho passports. All three of them so travelled between Hong Kong, Thailand and Singapore. Mr Yin also so travelled between Hong Kong and China.

6. It was as visitors that the Yins were permitted to land in Hong Kong.

7. When someone is permitted to land here as a visitor only, the practice is to authorize him to remain for a relatively short period. And the limit of his stay is chopped on his travel document at the point of entry. Moreover, by regulations, his visit is automatically subject to conditions which prohibit him from: taking employment here; establishing or joining in any business here; or becoming a student here.

8. He can, however, apply for an extension, or a series of extensions, of his visit. And he can even apply for the cancellation of any or all of those prohibitory conditions, so that his status here may become something more than that of a mere visitor.

9. Wishing to remain here, the Yins made all of those applications. They applied for and obtained visitors' extensions. And, by applying for the cancellation of the condition prohibiting him from establishing or joining in any business here, Mr Yin made what amounted to an application to change the whole family's status here. For where a "business" application succeeds, the successful applicant receives what is colloquially called a "business visa". And the practice is to grant him and his dependants a one year extension to begin with, followed by further extensions without difficulty all being well.

10. The Yins' "change of status" application was initiated in November 1991.

11. In early December 1991, Lesotho cancelled 276 Lesotho passports which had been issued to Chinese citizens, including the Yins.

12. Later that month, the daughter of the family was born here in Hong Kong.

13. On February 3, 1992, the Director turned down the Yins' application for a change of status.

14. Going by what the Director had authorized, that left the father and daughter with only until the 14th of the following month to leave Hong Kong. And, even more drastically, it left the mother and son with only four days to leave Hong Kong.

15. Of necessity in a great rush: papers were drawn up for an application for judicial review by the mother and son; and leave to apply for judicial review was obtained from Ryan J at his home.

16. The refusal of which the mother and son complained was the Director's refusal to grant them, to quote from their Notice of Application, a "change of status" and "dependant visas".

17. That was an unpromising start. It involved an attempt to build upon the husband's application for a "business visa". That application rested upon his being here as a visitor on a Lesotho passport. But that foundation had gone.

18. To make matters worse, the wife and son's case was argued as if a removal order had been made against them, when none had.

19. Nor surprisingly, they lost. Mayo J dismissed their application for judicial review. That was in late 1992. And in early 1993, albeit on grounds different from the ones on which he based his decision, this Court upheld the result at which Mayo J had arrived. Indeed, by the closing stages of that appeal, Mr McCoy, who then appeared for the mother and son, obviously realised that his then cause was a lost one. And, without actually conceding defeat, he indicated that his real hopes lay in the future: on behalf of the whole family and on a fresh basis.

20. What followed the dismissal of the wife and son's appeal was this. On behalf of the whole family, it was put to the Director that they were stateless so that either they were automatically entitled to remain in Hong Kong permanently or at least that they ought to be left in peace to do so. It was not put quite as plainly as that. But that was what it boiled down to in the end.

21. The Director's decision was communicated to the family by his letter of June 22, 1993, to their solicitors. He did not accept their contention that they were automatically entitled to remain in Hong Kong permanently. Nor was he prepared to leave them to do so. He reminded them that he had only given them his authority to remain here until the 29th of that month. They had, he said, to leave by then.

22. The family, reiterating the arguments which the Director had rejected, sought leave to apply for judicial review of his decision.

23. On July 2, 1993, dealing with the matter on paper and without a hearing, Kaplan J gave them such leave.

24. The Director took out a summons to set aside such leave and dismiss the application for judicial review on the grounds, to quote from that summons, that the application disclosed "no arguable case to merit investigation at a substantive hearing or alternatively [was] an abuse of the process of the court."

25. That summons came before Mayo J. By his Order dated December 15, 1993, he set aside the leave granted by Kaplan J, and dismissed the application for judicial review.

26. It is against that Order of Mayo J that this appeal is brought by the family who asks us to restore such leave and application.

27. Mayo J decided in favour of the Director on both the grounds advanced in his summons.

28. As far as abuse is concerned, Mayo J took the view that the second application for judicial review involved an attempt to litigate matters resolved in the first one. That simply is not so. The first was by two members of the family on a certain basis, while the second is by the whole family on a different basis. That can be seen from what has already been said.

29. With the question of abuse out of the way, what remains is the positive case advanced by Mr McCoy on behalf of the Yins. Presenting his case with his usual ability and, for want of a better word, flexibility, Mr McCoy ultimately left three points for our consideration. If at least worthy of full investigation, any one of those three points would entitle the Yins to the restoration of the leave which Kaplan J had granted and Mayo J has set aside.

30. Each of those three points begins with the contention that the Yins are stateless within the meaning of the Convention Relating to the Status of Stateless Persons, 360 U.N.T.S. 117, in that each of them is, as it is put in article 1 of that treaty, "a person who is not considered as a National by any State under the operation of its law." The United Kingdom is a party to the treaty, and has applied it to Hong Kong. On the material to hand, the contention that the Yins are stateless at least merits full investigation.

31. The first point continues along these lines. Article 31 of the treaty prohibits the expulsion of stateless persons lawfully in the territory save on grounds of national security or public order. The Yins came here lawfully. And neither national security nor public order requires their expulsion. Accordingly, they are entitled to remain in Hong Kong permanently.

32. There, at the end of that point, is where it runs into difficulty. For it depends on the notion that a treaty has - on its own steam, so to speak - been incorporated into domestic law.

33. The submissions which we have heard leave us unpersuaded that the first point is arguable or has any potential for becoming so.

34. That also applies to the second point, which is that the Director's discretion must inevitably be exercised so as to leave the Yins here, because he is obliged to "conform" with the treaty. That sort of argument was characterized by Lord Ackner in Reg. v. Home Secretary Ex parte Brind [1991] 1 AC 696 at pp.761H-762A as incorporating a treaty into domestic law "by the back door" - something which is of course impermissible.

35. Mr McCoy has sought to persuade us that it is at least potentially arguable that the constitutional set-up in Hong Kong differs from that of the United Kingdom in such a way as to make that sort of thing the law here even though not there. We are, on the submissions which we have heard, not persuaded of that.

36. We come now to Mr McCoy's third and final point. It runs like this. In his decision letter, the Director said in terms that: "Statelessness is not a relevant consideration." But in truth, it was, even if not a conclusive consideration, at least a relevant one. Accordingly, the Director's decision is vitiated by a failure to take a relevant consideration into account.

37. In seeking to defend his client's stance that the statelessness is not a relevant consideration, Mr Marshall for the Director seeks to rely on the decision of this Court in the earlier appeal of the mother and son without the father and daughter.

38. In Litton JA's judgment in that appeal, there are certain statements as to the relevance or otherwise of statelessness, with which statements one other member of that division may have agreed, which may afford Mr Marshall some assistance.

39. But even then, there are still two impediments in Mr Marshall's way. To begin with, those statements are made in a different context. There is no need to expand upon that. We have already dealt with the differences between that case and this one. Further, even in their context those statements are obiter. The mother and son were seeking visas. But neither of them had any travel document. And the Director's policy was that, as he put it: "Without a valid travel document there can be no visa." If that policy could not be impeached, then the Director's decision could not be impeached either. And the Court held that the policy could not be impeached. Accordingly, that appeal had to be decided against the mother and son whether or not statelessness was relevant.

40. As we are here concerned only with leave, applying dicta as to the relevance or otherwise of statelessness from the mother and son's appeal to conclude this appeal against the whole family would be going far too far.

41. When you have a discretion whether to let people stay or insist that they go, you would, in deciding what to do, naturally consider what would be their position if you insisted that they go. It includes whether there is any place that would receive them. The decision-maker in the present case considered that. But, at the very least, there is potential in the argument that it also includes whether they have the nationality of that - or, indeed, any other - place. That was deliberately left out of consideration by the decision-maker.

42. In support of his case on his third and final point, Mr McCoy referred to among other cases, Rantzen v. Mirror Group Newspapers [1993] 3 WLR 953 and Tavita v. Minister of Immigration [1994] NZAR 116. In the first of those two cases, Neill LJ, giving the judgment of the Court of Appeal in England, said at p.971 that:

"It is now clear that [a treaty provision] may be used when the court is contemplating how a discretion is to be exercised."

And in the second of those two cases, Cooke P, giving the judgment of the Court of Appeal in New Zealand, said at p.125 that:

"The law as to the bearing on domestic law of international human rights and instruments declaring them is undergoing evolution."

43. In the mother and son's appeal, the second member of that division, who happens to be presiding over this one, made this reservation:

"For my own part, I say nothing on the full range of the implications of international obligations on municipal administrative decision-making."

44. Naturally, it is not to be assumed that Hong Kong has no respect at all for its treaty obligations, especially those pertaining to fundamental human rights of an international dimension. It is at least potentially arguable, therefore, that where Hong Kong has a treaty obligation not to expel stateless persons except on grounds of national security or public order, then, even though that obligation has not been incorporated into our domestic law, it is nevertheless a factor which our immigration authorities ought to take into account when exercising a discretion whether or not, in all the circumstances, to insist upon the departure from this territory of any stateless person even though his departure is not required by national security or public order.

45. But even ignoring any such treaty obligation, there is at the very least potential for saying that whether people have the nationality of the place to which you would send them, if you were to expel them, is inherently relevant to whether or not you should let them remain, if you have a choice in the matter, since whether they have that - or, indeed, any other - nationality is part of the impact upon them of expulsion. If you have to make an important choice over how you are going to deal with people, then naturally you should give full rather than partial consideration to how they are going to be affected by your choice before you make that choice.

46. This appeal must be - and is - allowed so as to restore the leave which Mayo J set aside and the application which he dismissed.

47. It is up to the Director, on advice presumably, whether to contest the application in due course or to re-open his decision, taking the question of want of nationality into account.

48. We thank counsel on both sides for their assistance, and invite them to address us on costs.

[Costs]

49. Mr McCoy seeks - and Mr Marshall does not seek to resist - costs here and below. Accordingly, the appeal is allowed with costs here and below to the Yins, such costs to be taxed if not agreed.

Representation:

Mr Gerard McCoy & Mr P.Y. Lo (instructed by Charles Yeung, Clement Lam & Co.) for the appellants, the Yins

Mr W.R. Marshall QC & Miss Meena Datwani (of the Attorney General's Chambers) for the respondent, the Director of Immigration