In Re Du Gui Fang

HCMP003079/1992

1992, No. M.P.3079

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Liu J. in Court

Dates of hearing: 22, 24, 28-30 December 1992

Date of delivery of judgment: 2 February 1993

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J U D G M E N T

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1. In 1991, the applicant, Du Gui Fang, came to Hong Kong as a visitor on a Tongan passport. Later in the year, on 4th September, the applicant and Mr Chung Chi Kong contracted a marriage before the Registrar of Marriages in the Eastern Marriage Registry. It is claimed that the applicant has, since 4th September 1991, been living with Mr Chung as man and wife.

2. On 9th September 1991, the applicant applied for a change of status so as to stay in Hong Kong permanently, joining Mr Chung as her alleged spouse. She had entered Hong Kong on a visitor's visa. Her application for change of status was required to be made to the Entry Visa Section of the Immigration Department. Her application was accompanied by her marriage certificate issued on 4th September 1991. It was the then immigration policy that an application of such a nature by a person of the applicant's affiliation would normally be approved upon the Director being satisfied of the existence of a genuine husband and wife relationship. This immigration policy was not to be abused by what the Acting Principal Immigration Officer, Mr Wong Tak-po, called a sham or bogus marriage or a marriage of convenience. For our present purpose, it is a marriage with no genuine man and wife relationship.

3. In March 1992, when the applicant sought a further extension of stay as a visitor pending her application, she was invited by the Entry Visa Section to attend for an interview on 28th April together with her alleged husband. A futile attempt had previously been made by a team of officers to verify their reported place of residence at Room B, 11th Floor, Shan Shing Building, 18-20 Village Road. On that visit, no one was found at the reported place of residence.

4. Almost three weeks before the interview appointment, at 6.30 in the morning on 9th April 1992, an immigration team paid another surprise visit at the said reported place of residence. Only Mr Chung was in those premises. The immigration team was thereupon led by Mr Chung to another address in the vicinity at Block A on the 8th floor, Malibu Garden, Tsui Man Street, where they found the applicant and two males, a Mr Chan who was said to be the principal tenant and a Mr Tam. Of the two keys to the entrance of the Malibu Garden flat, Mr Chung had only one. Mr Chan opened the door and admitted Mr Chung after some delay. The applicant used the larger bedroom. It was claimed that Mr Chan and Mr Tam had spent the night sharing a single-bed of 3 feet wide in the smaller room. The clothes and personal belongings of the applicant were stored together with those of Mr Chan's in Malibu Garden. Mr Chung's clothing and belongings were in Village Road.

5. Later in the day, the applicant and Mr Chung were interviewed at the Immigration Department. Both of them claimed that Mr Chan was a long time friend. The Village Road premises were rented by Mr Chan for $10,000 odd a month. The applicant and her alleged husband stayed in the larger bedroom with a double-bed contributing monthly $2,000 - $3,000. Mr Chan occupied the smaller room there. The Malibu Garden premises had also been taken by Mr Chan, this time for a little more than $10,000 odd a month. The applicant had just moved in two days ago on 7th April but stayed her first night there on the 8th. The applicant and her alleged husband were to use the larger bedroom with a toilet, making a similar contribution. Mr Chan was content with the small bedroom opposite, which could barely accommodate the said modest single bed. According to the applicant, one of the rooms in Malibu Garden had been set aside for storing the clothes and belongings of all three. She explained that as a new lock had just been installed, her alleged husband was yet to have his own key. All the furniture and the electrical appliances belonged to Mr Chan. The applicant offered the further explanation that she had an altercation with Mr Chung on 8th April, and that after more quarrel on Mr Chung's return in the early hours, he left again and spent the night alone in the Village Road premises.

6. The position was that Mr Chung had not moved over to Malibu Garden; hence, his clothes remained in Village Road. She, the applicant, had herself transported her clothings and those of Mr Chan's to the new home, but her alleged husband, Mr Chung, was "lazy" and had not moved in his. Mr Chung and the applicant also gave different moving dates.

7. At the appointed interview on 28th April, there were inconsistencies in the versions given by the applicant and Mr Chung. Whilst Mr Chung said that he took the applicant home by taxi after their first dinner, the applicant claimed that she walked home alone. Mr Chung claimed that he proposed to the applicant in Shenzhen and Hong Kong, but the applicant maintained that she was proposed to by Mr Chung only in Hong Kong. The time of her acceptance as given also differed. The applicant confirmed that she had purchased for Mr Chung two underpants and one undervest for the new year, but Mr Chung used no undervest.

8. A decision was taken on 8th May 1992 and communicated to the applicant on 12th May. She was notified in a standard form that her application for change of status had been refused and she was permitted to remain only up to 26th May 1992. On 27th May, the applicant, through her solicitors, requested a reconsideration of her application. The Director of Immigration was asked whether there was any new matters he wished to raise. The Director was also invited to state whether any further material would be required. The applicant's solicitors sought information on the facts and evidence for the Director's reasons and decision. On 4th June, the Director informed the applicant's solicitors that her request for reconsideration was refused "as no new matters (had) been raised". The Director's decision communicated to the applicant on 12th May therefore stood. For the first time, the Director then disclosed that the refusal was based on "policy grounds".

9. On 8th June, the applicant's solicitors sought and obtained an appointment with the Director "to discuss all the matters and the new matters for (his) consideration". But, at the meeting held on 12th June, no new matters were advanced. During the meeting, the applicant's solicitor was informed "that due to the department's internal rules and regulations, (it) was not prepared to disclose any information relating to the results of (its) investigations and the reasoning behind (the Director's) decision".

10. No new matters were ever forwarded to the Immigration Department, but on 22nd June, solicitors for the applicant pressed the Director to state a case for judicial review. The purpose of the earlier meeting on 12th June was then given as one "with a view to (gaining) more information on the results of your investigation and to (understanding) the reasoning behind your decision". In the same letter, the applicant's solicitors demanded a response to their request. In his reply dated 28th August 1992, the Director stated the then immigration policy for granting a wife's application to join her husband for residence in Hong Kong on production of "reasonable proof of a genuine husband and wife relationship". The only issue, as put by the Director of Immigration, was "the genuineness or otherwise of the marriage".

11. It is now accepted that the Director of Immigration relied solely on the field observations or findings made on the surprise visit, the couple's then reaction and demeanour and the above discrepancies on acquaintance, time for proposal and daily activities as noted during the interviews. In his letter of 28th August, the Director of Immigration concluded: "We are satisfied based on the results of the investigation and interviews on the balance of probability that your client's marriage to her alleged husband, Mr CHUNG Chi-kong is not genuine".

12. Pursuant to the leave I granted, the applicant applies for judicial review of the decision-making process in entertaining her application. Relief is sought to quash the decision of the Director made on 12th May 1992 with reasons given on 28th August 1992 and in a letter received on 17th September 1992. In that letter received by the applicant's solicitors on 17th September, the Director reiterated the then immigration policy to allow a person from some territories to join his/her spouse in Hong Kong upon reasonable proof of a genuine husband and wife relationship. The Director stated again his conclusion that the marriage under consideration was not genuine. The Director accepted that the applicant's remedy, if any, lay "in applying for leave of the single judge under Order 53 of the Rules of the Supreme Court". The Director refused to supply any information other than the statements of the applicant and Mr Chung. The communication closed with his warning: "We agree that this case should not be further delayed. Therefore, if application to seek leave for judicial review is not filed within 14 days from the date of this letter, steps will be taken to remove Ms Du forthwith".

13. After the communication of the Director's decision on 12th May, but before 2nd June, at the request of the applicant, her case was submitted to the Chief Immigration Officer of the Entry Visa Section and the Assistant Principal Immigration Officer of the Visa Control Sub-Division for review and reconsideration. The refusal was affirmed on the same grounds on both occasions. It would not be open to the applicant to assume that less than her whole case was submitted for their evaluation. Presumably for good tactical purpose, in these proceedings the initial decision was chosen to be impugned. See p.142 et seq. "The Exhaustion of Alternative Remedies in Administrative Law" by Clive Lewis, Esq. Cambridge Law Journal, March 1992, Vol.51, Pt.I, p.138.

14. Judicial review is being sought of the decision communicated to the applicant on 12th May 1992 with reasons given in two said subsequent letters. No application was made during the hearing for discovery or inspection of documents and information relevant to the applicant's case. The inspection claimed in the declaration in paragraph 3 of the "Relief Sought" did not seem to have been enthusiastically called for. There remained a demand for disclosure of possible internal statements which are not, of any view, accessible to the applicant in proceedings invoking the courts' supervisory jurisdiction. The Senior Immigration Officer was free to obtain views of his departmental officers without having to disclose those views to the applicant. See Bushall v. Secretary of State for Environment, [1980] 3 W.L.R. 22 at p.28; Judicial Review, Michael Supperston, Q.C. & James Goudie, Q.C. 369. The applicant also felt aggrieved over the alleged absence of a fair opportunity of learning and/or dealing with evidence against her. The declaration prayed for in paragraph 2 was to enjoin the Director of Immigration to grant the applicant permission to stay. That is not a weapon in the arsenal of judicial review. The remaining complaint is found in paragraph 4: the Director of Immigration was obliged to furnish reasons for his finding of a sham husband and wife relationship. The question of stay was no longer a live issue.

15. The Director of Immigration sought leave to read portions of an additional affirmation of Mr Wong Tak-po filed on 19th December 1992. He wished to lay to rest the applicant's surmise that more information than the material already enumerated had been used by the department in its decision-making process. The Director drew attention to some discrepancies: whilst Mr Chung claimed that the couple moved to Malibu Garden on 1st April 1992, the applicant put the removal date on 7th April. She claimed to have taken up residence in Malibu Garden only as from 8th April. Mr Chung's version was that he proposed to his wife around 10th September 1991. The applicant claimed that Mr Chung proposed to her in Shenzhen and in Hong Kong, but she did not accept until January or February, during the New Year. It was placed on record what was actually said by a female investigating officer on site: she remarked that the applicant had probably shared her bed with someone else before the arrival of the team. Lastly, the Director clarified the absence of the applicant from the meeting arranged for 12th June between the Immigration Officer Mr So and the applicant's solicitor. According to Mr So, it was not the case that she was barred from attending the pre-arranged meeting. The suggestion was merely that her presence would be quite unnecessary when she was herself legally represented.

16. It was argued that this additional affirmation of Mr Wong Tak-po filed on 19th December 1992 was not admissible. Mr McCoy for the applicant first argued that the court had no jurisdiction to admit such an additional affirmation. R. v. Secretary of State for the Environment ex parte ARC Properties Limited was cited in support, and I was aided by a full transcript of the judgment of Popplewell J. It was there held that the revelations sought to be brought in by the applicant were irrelevant. Popplewell J. proceeded to express his view, by the way, that an applicant could not introduce an additional affidavit except for verifying added new or different grounds of relief under 0.53, r.3(2)(b), or as a response to new matters of any other party to the proceedings under 0.53, r.6(2). It would seem, so the judge observed, that 0.3, r.5 did not confer any general discretionary power on a court in judicial review to extend time for the filing of a further applicant affidavit.

17. The position of a respondent in judicial review proceedings is decidedly dissimilar. Order 53, r.6(4) provides that any respondent who intends to use an affidavit at the hearing shall file it as soon as practicable and in any event, unless the court otherwise directs, within 56 days after service upon him of the documents required to be served by sub-paragraph (1). I have ruled, in other proceedings, that the strict 56-day time limit is less rigorously enforced in Hong Kong. My ruling was not sought to be re-opened in this case, but Mr McCoy maintained that the Court had no jurisdiction to admit a further respondent's affidavit, particularly one intended as a reply to the applicant's reply.

18. Under 0.53, r.6(4), a respondent may use one or more affidavits, and he may do so out of time with leave under 0.3, r.5. Indeed, marginal reference 53/1-14/39 of the 1993 White Book envisages the use by a respondent of an additional affidavit: "Each party must reply to every other party on demand and on payment of proper charges copies of every affidavit which he proposes to use at the hearing, including copies of any additional affidavit (rule 6(5))." (Emphasis supplied). That would be sufficient to dispose of the challenge to this Court's jurisdiction to admit the additional affidavit from the respondent. Time is therefore extended under 0.3, r.5 to the respondent for filing and using what had been read de bene esse. It would also seem that in the latter part of 0.53, r.6(2), this Court may allow the respondent to use his further affidavit for dealing "with new matters arising out of an affidavit of any other party to the application." Insofar as the portions sought to be read by counsel for the Director of Immigration, in answer to new assertions made in the applicant's reply, this Court would, in my view, have jurisdiction to allow these portions to be so read. I also do invoke that power.

19. Counsel for the Director objected to the application on the ground that alternative remedies had not been exhausted. This Court was greatly assisted by an article of Mr Clive Lewis, a gentleman well-versed in administrative law, "The exhaustion of alternative remedies in administration law", supra. The Senior Immigration Officer of the Entry Visa Section was not exercising appellant or judicial functions. "An immigration officer is not a judge or a judicial officer. He has not to obey set rules of procedure. He is an administrative officer. He is engaged in administering the control of immigrants into this (territory). It is a most responsible and delicate task. He is, of course, bound to act honestly and fairly: but, so long as he does so the courts cannot and should not interfere". See R. v. Home Secretary ex parte Mughal [1974] 1 QB 313, p.325 Letters A/B - E/F, per Lord Denning, M.R. Nazareth J.A. adopted the same view in HCMP No.1004/92, the Applications of Ho Ming Sai (or "Sin") and Others, the judgment of which was delivered on 1st October 1992. The narrow ambit within which the decision-making process of such an officer may be questioned and the rarely expected success in the exercise can provide no reasonable justification for over-burdening the judicial review courts. I shall return to this area more fully later in this judgment. Moreover, the nature of the administrative decision of an immigration officer renders statutory remedies more appropriate. Refusal of the applicant's application was founded on an uninvolved issue which may confidently be resolved within the statutory framework provided by the Immigration Ordinance. This is also not a case of an alleged abuse of process as in Lee Man Hoi v. Commissioner of Inland Revenue and Commissioner of Police Civil Appeal No.8 of 1992, the judgment of which was delivered on 3rd June 1992. Any lacunae in the legality of the action of the Senior Immigration Officer would have stood a better chance of being cured on taking this matter to the Tribunal for an appeal. The need to apply for judicial review could probably be thereby avoided altogether. See pages 145, 146 of Mr Lewis' article.

20. On the other hand, the case had in fact been reviewed and reconsidered by a Chief Immigration Officer and an Assistant Principal Immigration Officer at the request of the applicant's solicitors between 12th May 1992 and 2nd June 1992. For this plain issue, an appeal would probably have served little practical purpose. Both parties to these proceedings apparently regarded judicial review as the proper avenue for resolving their dispute. My attention was also directed to the section under which the applicant's application was refused. It is silent as to the procedure to be followed. There may be a need for, so the Court was urged, providing some guidelines for the proper instructions of immigration officers in like circumstances. Judicial review may be justified by an issue of general importance. See page 151 of Mr Lewis' article. I am not persuaded that with the law currently stated all over the common law jurisdiction countries and here, guidance for immigration officers is wanting. But I am much influenced by the consensus that the applicant's case had reached a stage, where the issue became more amenable to judicial review. Failure to exhaust other avenue of remedies is not always fatal to an application for judicial review. See R. v. Panel on Takeovers and Mergers, ex parte Guinness plc., [1990] 1 Q.B. 146. After all, clear principles are still being developed by the courts as to whether alternative remedies should have been fully exhausted. See p.153 of Mr Lewis' article. This application has, with the blessing of both parties, taken too much root to be turned away.

21. Much was also sought to be made of the letter and spirit of Article 14 and Article 19 of the Hong Kong Bill of Rights. However, Mr Stone found a good answer in s.11 of the Hong Kong Bill of Rights Ordinance which reads:

"As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of such legislation."

22. It was not suggested that the Immigration Department had publicly proclaimed any immigration policy. The applicant did not rely on any declared Government policy known to her prior to the formal refusal on 12th May 1992. This case is different from what was described in Daganayasi v. Minister of Immigration [1980] 2 NZLR 130 as a right akin to legitimate expectation in a mother's application for a stay so as to enable her New Zealand born children to take advantage of proper medical care. The applicant here had herself no legitimate expectation of being allowed to remain in Hong Kong. Her possible nexus through Mr Chung as a spouse was a matter yet to be established by reasonable proof of a genuine man and wife relationship. She was admitted as an alien visitor. These proceedings are not concerned with a removal order which might give rise to some legitimate expectation of being treated with procedural fairness. See pp.211-212 "Judicial Review", Michael Supperstone, Q.C. and James Gondie, Q.C.; Kioa v. Minister for Immigration and Ethnic Affairs, (1985) 62 ALR 321 at p.345; [1985] 159 CLR 550, pp.582-583. She staged an application on her alleged status of an alien wife. She enjoyed no such legitimate expectation in her application as would enjoin the Entry Visa Section to provide procedural safeguards or exercise its power in any particular way.

23. The Director of Immigration through the Senior Immigration Officer in the Entry Visa Section proceeded to consider the applicant's application in the manner I have summarised. It should be noted that the applicant and Mr Chung had not complained of restraint from or lack of opportunity of freely giving whatever explanation they were able to give and that at the end of each interview they were specifically asked if they wished to make any alteration, correction or addition.

24. Mr McCoy realigned the applicant's complaints of Wednesbury unreasonableness under four heads:

(1) The Senior Immigration Officer failed or omitted to confront the applicant with potentially adverse or prejudicial matters or furnish reasons in his first formal refusal communicated to her on 12th May 1992;

(2) On the less than full investigation, supported merely by one surprise visit and interviews, no reasonable officer should or could safely have attempted at reaching a conclusion;

(3) The surprise visit and the follow-up interviews were inadequate and the manner in which the investigation was conducted was incomplete. These shortfalls themselves constituted procedural improprieties.

(4) The Senior Immigration Officer was obliged to make a sufficient enquiry and his failure to wholly discharge his obligation was a breach, non-performance or non-observance of this duty. That made him procedurally improper.

25. The burden and standard of proof were also hotly contested. Counsel for the applicant reminded the Court that in Mahadervan v. Mahadervan [1963] P 233, a marriage ceremony followed by cohabitation gave rise to a strong presumption of validity, rebuttable only by proof beyond reasonable doubt. Counsel also referred to Ginesi v. Ginesi [1948] P 179 and Preston-Jones v. Preston-Jones [1951] AC 391 for the proposition that adultery would require the strict proof as that for a criminal charge beyond reasonable doubt. But these are Family Law cases involving decisions operating, inter alia, in rem. On a strictly civil plane, even a pleaded criminal allegation calls for no criminal standard of proof. The proper onus is proof on the balance of probability, but with due regard to the gravity of the issue. See Khawaja v. Secretary of State for the Home Department, [1984] AC 74 at p.97, per Lord Fraser. The principle is no different for immigration cases. See Nadeem Tahir v. Immigration Appeal Tribunal [1989] Imm AR p.98.

26. An applicant is placed under a burden to satisfy the immigration officer of the requirements for gaining entry. See R. v. Immigration Appeal Tribunal ex parte Bhatia, [1985] Imm AR 50 and R. v. Immigration Appeal Tribunal ex parte Kumar, [1987] 1 FLR 444. At p.52 in Bhatia, Goff L.J., as he then was, affirmed the right of an immigration officer at an entry point "to make enquiries of his own and test such evidence as the applicant chooses to put forward". But that did not shift the burden onto the Senior Immigration Office of the Entry Visa Section to prove the negative that no genuine husband and wife relationship in fact existed. The burden was, therefore, clearly on the applicant to establish a genuine man and wife relationship for bringing herself within the then immigration policy, and the standard of proof was one of balance of probabilities. The Senior Immigration Officer of the Entry Visa Section had therefore to be satisfied by reasonable proof, upon the balance of probabilities, that it was a genuine marriage.

27. In judicial review, the law seems to have developed to a point where broadly speaking, the test is, subject to any clear contrary legislative intention, fair play in action. The growth of administative law has taken a chequered route. The prerogative writs made an early inroad into quasi-judicial functions. Almost on their heels followed an expansion of the courts' supervisory jurisdiction over the decision-making process of purely administrative tribunals. At one time, expansion of curial intervention was sought to be artifically justified by an implied duty to act judicially. That artificality was short-lived. "The 1960s saw an end to the fallacious requirement of a 'superadded duty to act judicially', and the beginning of an end to the 'administrative-judicial dichotomy'." In that decade, the notion of an unreal distinction between rights/privileges on the one hand and "property" for judicial review on the other was also disavowed by the courts. The common law concept of natural justice inherited by administrative law ultimately manifested itself, in the 1970s, in its modern derivation, i.e. the requirement to act fairly. See p.102 Review of Administrative Action, Mark Aronson and Nicola Franklin (1987). The majority of their Lordships in Privy Council in Furnell v. Whangarei High Schools Board [1973] AC 660, at p.679 per Lord Morris, described natural justice as "fairness writ large and juridically, fair play in action". Lord Goff in R. v. Independent Television Commission ex parte T.S.W. Broadcasting Limited, at p.21 of the transcript of the speeches given on 26th March 1992, focused on the duty to act fairly. As early as Wiseman v. Borneman, [1971] AC 297(H.L.) at p.308 Letter B, Lord Reid had adopted the same notion but the Law Lord saw the need to adhere to the applicable statutory framework:

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented the procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised, it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

28. In Lloyd v. McMahon [1987] AC 625(H.L.), in his oft-quoted passage at pp.702-3, Lord Bridge placed the same restraint on interference with legislative intention as manifested in an enabling provision:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlining concept what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, a kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on anybody the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

29. Lord Morris also favoured the comprehensive concept, "fair play in action", for natural justice. See Wiseman v. Borneman, supra. p.309, Letter B. In his speech in Bushell v. Secretary of State for Environment [1980], supra. at pp.27-28 Lord Diplock applied the same criterion, and that was five years before his rational groupings given later in Council of Civil Service Unions v. Minister of Civil Service, [1985] A.C. 374. Some way back in history, Lord Greene, M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at p.229 had queried whether challenge to the exercise of statutory powers could not simply be put under a single head of "unreasonableness". Lord Greene postulated that if the permissible challenges could not all be included in one description, they would overlap to a very great extent. It is, so the Master of the Rolls elaborated, generally described as doing "things that must not be done", e.g. a misdirection in law, not calling attention "to matters which (the authority) is bound to consider", excluding from consideration "matters which are irrelevant to what (the authority) has to consider", making an absurd decision, or "taking into consideration extraneous matters". Lord Greene generalised it: "It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."

30. Whilst in 1992 Lord Goff spoke in terms of "the duty to act fairly" in R. v. Independent Television Commission ex parte T.S.W. Broadcasting Ltd., supra., in the same case at p.11 Lord Templeman referred to the classifications of illegality, irrationality and procedural impropriety of Lord Diplock in Council of Civil Service Unions v. Minister of Civil Service, supra. at p.810 and Lord Greene's "unreasonableness" as explained in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, supra.

31. First, "it is", as Lord Wilberforce had advised, "necessary to look at the procedure in its setting and ask the question whether it operates unfairly (or, if I may be so bold as to add, ineffectively) .... to a point where the courts must supply the legislative omission". Wiseman v. Borneman, supra. p.317, Letter G. Illegality, irrationality or procedural impropriety or the compendious head of Wednesbury unreasonableness - all these would serve well for the purpose of classifying, by nature, a complaint rather than insolating it. A shortfall would seem to be more easily identifiable by first examining the statutory setting. If statutory regime must be supplemented by the duty to act fairly, the immediate concern is what that duty requires in the way of providing fairness in the circumstances of the particular case, bearing in mind the legislative intent and the nature of the applicant's claim. The concept of fairness is indeed broad and flexible.

32. I return now to consider the facts on the principles by which I regard myself bound. The refusal of the Senior Immigration Officer was communicated to the applicant on 12th May 1992 in a standard immigration form. By 4th June 1992, the applicant was informed that her refusal was based on "policy grounds". The solicitor for the applicant was similarly informed at the meeting arranged for 12th June 1992. By 28th August 1992, the Director of Immigration categorically stated the issue which needed to be addressed by the applicant, i.e. "reasonable proof of a genuine husband and wife relationship". The Director also identified the sources of the material, upon which the decision had been reached, viz. "the results of the investigation and interviews". The same stance was repeated in the undated letter of the Director, received by solicitors for the applicant on 17th September 1992. Statements of the applicant and Mr Chung were released to her at the same time. All these disclosures had been made prior to her application for leave for judicial review made on 30th September 1992. The Director of Immigration through the Senior Immigration Officer relied exclusively on the field observations or findings, as well as the reaction and demeanour of the couple on the surprise visit and also discrepancies noted at the subsequent interviews. On these matters, any other decision than the one made in this case would have been perverse. The applicant had chosen to rest her case without any further evidence. In reality, there is no reasonable proof of a genuine husband and wife relationship. Can administrative law be so different from common sense?

33. The applicant complains that the decision-making process of the Senior Immigration Officer could be faulted and that her rights in administrative law had been infringed.

34. The applicant had no right to a stay as an alien. She would be eligible for the grant of an indulgence under our then immigration policy on adducing reasonable proof of a genuine husband and wife relationship after her Registry marriage. Whilst a couple are entitled to contract a formal marriage, a genuine man and wife relationship would not thereafter follow as a matter of course. It is on such a personal relationship that the application of a Tongan passport-holder for a permanent stay to join her Hong Kong spouse had to be entertained, under the then immigration policy. Immigration officers at the Entry Visa Section are not exercising an appellant or judicial function. See R. v. Home Secretary ex parte Mughal [1974] 1 QB 313, at p.325 Letter C where Lord Denning failed to see the need for an immigration officer to put adverse reports to an applicant. At Letters E/F, the Master of the Rolls was understandably cynical: "The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke 'the rules of natural justice' so as to avoid the consequences". Nazareth J.A. likewise acknowledged the administrative function of an immigration officer in HCMP No.1004/92, the Applications of Ho Ming Sai (or "Sin") and Others, the judgment of which was handed down on 1st October 1992. In addition, with reference to an alien's application, the immigration officer's administrative function so exercisable is, by its nature, a discretion related to the residue of prerogative power. See generally p.223 Professor Wade's Administrative Law, 6th edn. In the absence of even a pretence of a right or legitimate expectation, an immigration officer at the Entry Visa Section need provide no reasons and he is not obliged to put the applicant on notice of any or any potentially damaging material. The relevant immigration legislation is silent as to the procedure to follow. It does not enjoin an immigration officer to give reasons or disclose prejudicial contents before an adverse decision is made. Our immigration officers are unconcerned with the more sophisticated criteria of "primary purpose" and "intention of living permanently with one's spouse" in the English Immigration Rules for the guidance of their immigration officers, as in R. v. Immigration Appeal Tribunal ex parte Kumar [1987] 1 FLR 444. A Hong Kong immigration officer has merely to entertain a strictly common sense issue i.e. a genuine man and wife relationship. He needs to have only reasonable proof. This plain issue is readily understood by all. For the Entry Visa Section, the proper approach is for its officers "to consider the question as would a jury, that is to say by impression based on evidence as a whole, rather than on legalistic analysis". See Kuma, supra. p.453, letters G/H, per Sir John Donaldson, M.R. This is precisely what the Senior Immigration Officer did with the applicant's application.

35. The evidence as a whole in this case must have been transparent to the applicant, and it would be absurb to suggest that there was a need for her to be prompted. In the circumstances of this case, the applicant could not have herself failed to appreciate, on notification of the formal refusal on 12th May 1992, what the prejudicial matters were and what salvaging supplemental evidence she could, if available, muster and lead. She knew full well what case she had to meet. The prejudicial contents of the surprise visit and the interview statements were perfectly obvious. The overwhelming damaging aspects could not have escaped her and her solicitor's notice. She had been legally represented long before her application for leave.

36. There is indeed no general rule of the common law or principle of natural justice which requires reasons to be given for administrative decisions. A full historical survey is given in Public Service Board of New South Wales v. Osmond [1986] 60 ALJ 209. At p.217, Dean J. provided an additional observation: "The circumstances in which natural justice or procedural fairplay requires that an administrative decision-maker give reasons for his decision are special, that is to say, exceptional." In Lau Tak Pui and Others v. Immigration Tribunal [1992] HKLR 374, at p.388 Clough J.A. lent his staunch support to the proposition that there was no warrant for supplementing the Immigration Ordinance legislation with a common law natural justice procedural requirement based on principle of fairness unless the statutory provisions, if complied with, were shown to be insufficient to achieve justice. See again the speeches of Lord Wilberforce and Lord Reid in Wiseman v. Borneman, supra. at pp.317 Letter G & 308 Letter B respectively. Lau Tak Pui did not deal with immigration officers but with the Immigration Appeal Tribunal, held to be a fully judicial body required by the Ordinance to articulate reasons.

37. Officers at the Entry Visa Section are expected to discharge their functions peremptorily but with commensurate care. In practice, the system would become unworkable, and immense administrative difficulties and great trepidation would be caused if these officers were required to discharge quasi-judicial functions. Efficiency would surely then be affected, incurring overall unjustifiable costs, expense and delay.

38. The duty to be discharged by an immigration officer of the Entry Visa Section is wholly different from that of the Immigration Tribunal, as in Lau Tak Pui and Others v. Immigration Tribunal, Supra and R. v. Immigration Appeal Tribunal ex parte Khan (Mahmud) [1983] 1 QB 790. The issue which the Tribunal was determining as a fully judicial body and the evidential basis upon which it had reached its determination on that issue must be sufficiently articulated.

39. I am unable to endorse the attitude of the Immigration Department as reflected in paragraph 16 of Mr Wong Tak-po's affirmation filed herein on 4th December 1992. For the Immigration Department, the guideline must be whether the immigration officer at the Entry Visa Section can, in any particular case, discharge his statutory duty fairly and effectively without disclosing prejudicial contents and/or giving reasons. Generally, he can unless the circumstances are unusual, special or exceptional. It would be wrong for the department to give reasons of refusal only in straightforward cases and adopt a "usual practice not to disclose the reasons so as to avoid a tailoring of applications in cases involving a more sensitive or dubious nature".

40. It was for the applicant to discharge her onus in establishing a genuine man and wife relationship. The Director of Immigration had no obligation to make any or any reasonably adequate enquiry.

41. The Senior Immigration Officer in this case was not obliged to give reasons for his refusal; nor was he required to forewarn the applicant of any or any potential deficiencies. In a case simply involving the genuine man and wife relationship, the clear issue would provide no special or exceptional cause for altering this basic obligation. But in all the circumstances, once the sources of the evidential basis were disclosed, upon which the Senior Immigration Officer had reached his decision, the prejudicial contents would become perfectly plain to the applicant. Such disclosure was in fact made well before her application for leave for judicial review. She must have then been aware of what she had to put forward in answer to matters inimical or adverse to her interest. She can claim no injustice. In any case, the precise evidential basis for the refusal has now been particularly delineated in the affirmation evidence filed in these proceedings, but the applicant has chosen not to supplement her case with any further material evidence.

42. The right to judicial review is a procedure to be nurtured. Every effort is expected of a litigant to succinctly address the relevant issues. The grounds for relief and the four modified criticisms under Wednesbury unreasonableness would seem to be over-extended and perambulating for a wholly uninvolved claim. They all stand or fall by the fundamental issues I have endeavoured to resolve. The applicant had been shown in a very poor light by the surprise visit and the subsequent interviews. No real attempt had in any way been made to remedy or contain the damage. Even if the decision-making process of the Senior Immigration Officer in his decision communicated to the applicant on 12th May 1992 had in any way been susceptible of judicial review, no benefit could have endured to the applicant from the exercise. I need not consider in this case that since no amount of procedural impropriety or lack of fair play could have led to a different result, I should refuse relief. See p.533 Wade, 6th edn. If judicial review were to continue to provide a meaningful service to our community, there must be closer and better co-operation from the professions.

43. The application wholly fails, and it is dismissed. I make an order nisi for costs against the applicant in favour of the respondent.

Representation:

Mr G.J.X. McCoy, instructed by Messrs. Wong & Lam, for the Applicant.

Mr William Stone, instructed by Crown Solicitor, for the Respondent.