Chan Kam Lun and Another v. Director of Immigration and Another

CACV000003/1993

IN THE COURT OF APPEAL

1993, No. 3
(Civil)

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Coram: Penlington, Nazareth, JJ.A. and Sears, J.

Date of hearing: 1 June 1993

Date of handing down judgment: 16 June 1993

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J U D G M E N T

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Sears, J. (Giving the Judgment of the Court)

1. On June 1st, we allowed the appeal and quashed the decision of the Immigration Tribunal. We said we would give our reasons which we now do.

2. In August 1990 Chan King Oi, his wife and three children went to the Immigration Department to regularize their position. The wife had sneaked into Hong Kong in 1983 and she said her children had all been born in Hong Kong. The Immigration Department investigated her claim and were satisfied that her youngest child was so born, but that the elder two were not.

3. Removal orders, pursuant to Section 19 of the Immigration Ordinance (Cap. 115), were issued against the elder children on July 2nd 1991 and an appeal to the Immigration Tribunal was heard on February 11th 1992. The father, Chan King Oi, the mother Tsang Han, and three friends went to the Tribunal. The father was asked to supply a list of witnesses and he wrote down the names of the three friends. His and his wife's names were not on the list.

4. At the hearing the father testified first and a series of questions was put to him, apparently by both of the two adjudicating officers. He was asked about his wife, the fact that as she was illegally in Hong Kong she could not be admitted to hospital and a number of detailed questions about the flat he claimed to have lived in. He was then cross-examined by the Immigration Officer. The three witnesses gave evidence, but his wife did not, although we understand she was in the Tribunal's waiting room. After brief submissions, the appeals against the removal orders were dismissed.

5. By virtue of Section 53D of the Ordinance, the only issue for the Tribunal to determine was whether the children had proved that they had the right of abode in Hong Kong. The onus of proof was on them - see Section 64 - and under Section 2A the right of abode is guaranteed to permanent residents, as defined in Schedule 1. If therefore the children could prove they had been born in Hong Kong, they would be permanent residents and with the right of abode in Hong Kong by virtue of being British Dependant Territories citizens.

6. The children, aged 8 and 7, at the time of the hearing, obviously could not present their own case and so their father represented them, although there was no formality about it. The best person to prove where a child is born is the mother. It was not surprising, therefore, that when the Tribunal gave its reasons it said:

"Their mother did not give evidence and the only witness to give any evidence regarding their presence here soon after birth was their father."

7. Pursuant to leave given by Bokhary J. (as he then was), an application for judicial review of the Tribunal's decision was heard by Mayo J. on November 9th 1992. No challenge was made to the removal orders, but it was contended that the children did not have a fair hearing in that their mother did not give evidence. A submission was made that the Tribunal itself should have summoned the mother, pursuant to Rule 10 of the Immigration Regulations, to give evidence, but it was also submitted that the Tribunal should have made it clear to the father that the wife's evidence was of crucial importance. Much of the Judgment concentrates on whether the Tribunal should have itself called the mother as a witness. The Judge said:

"The question which has to be considered is the extent to which it was incumbent upon the Tribunal to participate in the proceedings to ensure that all the main issues were adequately ventilated and that justice was duly done."

8. The Judge accepted the principle that this Tribunal should act fairly. Indeed the concept of natural justice and fairness in hearings before a tribunal exercising a quasi-judicial function has been well recognised over the years. Judicial review is the appropriate remedy when the duty to act fairly is broken.

9. The only way for a court to decide whether there has been a breach of this duty is to examine the subject matter of the adjudication, the procedure followed and all the relevant circumstances. There is no set standard for a Court to adopt. Lord Russell of Killowen in Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 1 WLR 1255 at p.1266 suggested, did the complainant have "a fair crack of the whip". One of the relevant circumstances to examine is whether the person appearing before such a Tribunal is represented. We have indicated that the adjudicating officers questioned the father, presumably because he was not able to relay his evidence in a logical or relevant way. The duty to act fairly to unrepresented persons in criminal trials was highlighted in R. v. Carter (1960) 44 CAR 225 where the trial Judge's failure to ask the defendant whether he had any witnesses to call led to the conviction being quashed.

10. The Judge cited with approval a paragraph from Professor Wade on Administrative Law 6th Ed. at p.923 in which he emphasises that tribunals should not pursue an inquisitorial role. While there is provision for the tribunal to call a witness itself it is a power which should be exercised with great caution. However Professor Wade concludes with these words "Naturally this does not mean that the tribunal should not tactfully assist an applicant to develop his case, particularly when he has no representative to speak for him, just as a judge will do for an unrepresented litigant".

11. The Tribunal acts within a limited legal framework. Legal aid is not available to an appellant and the procedure adopted, although conducted in an adversarial style, is more flexible and informal than that of a Court. The Tribunal itself, as has been mentioned earlier, questioned the father prior to his cross-examination.

12. In reaching his decision the Judge said:

"I have considered the transcript of the hearing before the Tribunal carefully and I have come to the conclusion that the Tribunal cannot fairly be criticized for not calling the applicant's wife to give evidence. I am also of the view that the Tribunal made it manifestly clear that as much evidence as possible should be presented to establish that the boys had been born in Hong Kong and that the applicant has only himself to blame that he did not call his wife as a witness."

13. The Judge appears to have transposed the rights of the children to those of the father, who, if it had been his appeal, may well have no one to blame but himself, but all he was doing was acting as a spokesman for the children.

14. In an affirmation, the father has deposed that he thought both he and his wife would give evidence, although his name was not on the list of witnesses supplied to the Tribunal, but he made no protest about her non-appearance before the decision was given.

15. The real issue for the Court is whether, on these particular facts, the Tribunal was in breach of its duty to act fairly to these children. It is clear from the record that "the tribunal procedure" had been explained to the father and that he was told the case was based on "connection with Hong Kong and place of birth". He was a construction worker who from his presentation was of limited intelligence.

16. He did not call his wife who was outside in the waiting room, and it should have been obvious to him that the witnesses he did call positively harmed the appeal. The Tribunal described his evidence as "incredible" and that of the witnesses as "completely unacceptable".

17. It must be remembered that the Appellant was not the father, but each child and the Tribunal's duty was to ensure that each child's interests was protected by ensuring that they had a fair and just hearing.

18. The Tribunal made no enquiries as to where the mother was, or whether she was available to give evidence. They did not, in the words of Professor Wade, "tactfully assist" the father. In those particular circumstances the children suffered unfairness.

19. It is not necessary for us to decide, as the Judge did, that there was no positive duty on the Tribunal to call the mother. There is always an inherent danger in summoning a witness who may destroy an appellant's case and the Tribunal must not give the appearance of itself conducting an inquiry into the issues it must decide. The Tribunal does have power under Regulation 10 to summon a witness of its own accord and there must obviously be occasions when such a power is exercised. In the instant case, however, there was, in our judgment, at the least, an obligation on the Tribunal, to have alerted the father to the importance of the mother's evidence. She was present, but outside the tribunal room, and we can see no risk that she could have harmed the "incredible" evidence of the father, nor exposed herself to any harm, as it was already known she was an illegal immigrant.

20. Whether her evidence, if given, would bring about a different result is irrelevant to this Court's consideration.

21. In our judgment, on the particulars facts, we are of the view that these children were denied a fair hearing and certiorari will go to quash the Tribunal's decision. This will, no doubt, involve a new hearing and it should take place before a differently constituted Tribunal.

Representation:

Mr. Philip Dykes, instructed by Messrs. Wong, Hui & Co. for the Appellants.

Mr. S.H. Kwok, instructed by the Crown Solicitor for the Respondents.