Wong Wing Hung v. Director of Immigration

HCAL001848/2000

HCAL 1848/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 1848 OF 2000

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Coram: Hon Chung J in Court

Date(s) of Hearing: 24 October 2000

Date of Decision: 24 October 2000

Date of Handing Down Reasons for Decision: 3 November 2000

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REASONS FOR DECISION

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Introduction

1. The Applicant claims to be a Hong Kong permanent resident and commenced this Application against 3 decisions made earlier by the putative Respondent, the Director of Immigration ("the Director") respectively on 10 March 1996, 24 November 1998 and 31 July 1999. The Director on these occasions refused the Applicant's application to enter and stay in Hong Kong.

2. At the end of the hearing on 24 October 2000, an order was made:-

(a) extending the time to apply for leave to apply for judicial review:-

(1) in relation to the decision dated 31 July 1999; and

(2) based on the grounds set out at para. 56-7 and 64-5 of the Amended Form 86A;

(b) giving leave to apply for judicial review in relation to the above matters.

I indicated at the time of the order that brief reasons would be handed down later. They are as follows. Since leave to apply for judicial review has been given, it is undesirable to go into the details of the matters likely to be disputed at the substantive hearing. The following is not intended to prejudice the substantive hearing and is set out solely for the purpose of explaining why the order was made.

3. The Applicant brings this Application based on 3 main grounds:-

(1) the Director's decisions were illegal in that, in law, by 22 June 1988 (the time when he left Hong Kong for mainland China for medical purposes) the Applicant has already become a Hong Kong permanent resident and enjoyed a right of abode in Hong Kong ("the Illegality Argument");

(2) alternatively, if the Applicant has not in fact become a Hong Kong permanent resident by 22 June 1988, he legitimately expected that he would be given that status by then ("the Legitimate Expectation Argument");

(3) by reason of oral representations of officers of the Director made respectively in April 1995 and May 1995, the Director is estopped from denying the Applicant's entry and stay in Hong Kong ("the Estoppel Argument").

The Illegality Argument

4. I only need to set out the gist of this limb of the Applicant's case. He is a Chinese national and came to Hong Kong illegally on 12 October 1980. On 16 October 1980 he registered with the Registration Division of the Immigration Department and was issued with a registration document.

5. On 23 October 1980, Government effected a change in its "reached-base" policy: see Hong Kong 1981, Ch. 11, p. 145. Since that date, illegal immigrants from the mainland would be repatriated even if they managed to enter the urban area in Hong Kong. At the same time, Government announced what Mr Chan for the Applicant calls an "amnesty" to illegal immigrants from the mainland who were already in Hong Kong. Mr Chan argues that this "amnesty" announcement was made with the Director's authority: see Mak Yiu-ming v. AG [1981] HKLR 435, 437B.

6. For the purpose of the provisions of the Immigration Ordinance, "residence in Hong Kong" refers to lawful residence. In other words, residence with the Director's permission. Mr Chan accepts that the most common way of the Director granting such permission would be by way of issuing a Document of Identity. He argues however that in the unusual circumstances of this case, namely, the "amnesty" being announced in October 1980, the Director has granted permission to those falling within the "amnesty" to remain in Hong Kong as from the date the Director issued a registration document to the Applicant. Mr Chan submits that this is evidenced by:-

(1) the Applicant being permitted to stay in Hong Kong since his registration on 16 October 1980;

(2) the back-dating of the Applicant's Hong Kong identity card to 16 October 1980.

7. Having heard the parties, I conclude that the Applicant has establish this part of his application to the standard required by Ho Ming Sai v. Director of Immigration [1994] 1 HKLR 21.

The Legitimate Expectation Argument

8. Mr Chan argues that even if the Director has not in fact granted permission to stay to the Applicant by way of the "amnesty" announcement in October 1980, such an announcement created a legitimate expectation on the Applicant's part. The expectation was in short that he was permitted by the Director to remain and stay in Hong Kong as from the date of his registration at the Immigration Department.

9. I conclude that the Applicant has also established this part of his application to the requisite standard.

The Estoppel Argument

10. This part of the Applicant's case can be summarized as follows. After the Applicant left Hong Kong in June 1988, it was noticed that his Document of Identity would expire in April 1995. His sister came to Hong Kong to enquire with the Immigration Department about this. Allegedly an unidentified officer orally informed her that because the Applicant was ill and could not return to Hong Kong to renew his Document of Identity, the Applicant would be allowed to do so when he was able to return.

11. Further, in May 1995 (2 days before the Applicant's Document of Identity expired), his sister came to Hong Kong again for the same purpose. Again an unidentified officer of the Immigration Department repeated in essence what was allegedly said by the other officer in April 1995.

12. Even if these allegations be true, the Applicant must have known since March 1996 that the said representations were untrue. In March 1996 the Applicant was refused permission to land in Hong Kong.

13. No explanation was given regarding the delay in making the application for leave to apply for judicial review since March 1996 to 31 July 1999 (the Director's last decision). The Director has denied the above allegations and complained that the delay has prejudiced his case because it is unlikely rebutting evidence can be located now.

14. By reason of the matters aforesaid, I agree with the Director's argument that insufficient cause has been shown by the Applicant for time to be extended in respect of the Estoppel Argument.

The Director's Decisions on 10 March 1996 and 24 November 1998

15. As stated above, altogether 3 decisions of the Director are challenged in the Amended Form 86A. I have refused to extend the time for this Application insofar as it is based on the Estoppel Argument. The Applicant's challenge of the earlier 2 decisions based on the Estoppel Argument cannot properly proceed further. Leave to apply to judicial review regarding these decisions ought therefore to be refused.

16. I am, nevertheless, satisfied that the Applicant has exercised due diligence in obtaining legal assistance through the Hong Kong Bar Association's pro bono legal assistance scheme from 31 July 1999 to the date of this Application. As a result of the legal advice given to the Applicant, he was able to obtain legal aid. In this connection, I have considered the decision in R. v. Stratford-on-Avon D.C. exp Jackson [1985] 1 WLR 1319 to the effect that it is a legitimate excuse for delay in applying for leave if time is needed to obtain legal aid.

17. However, the refusal of leave regarding the 2 earlier decisions of the Director should not be taken as shutting the Applicant out from challenging them in relation to the Illegality Argument and/or the Legitimate Expectation Argument. I mention this because of the following matters:-

(a) if the Applicant turns out to be successful in relation to the Illegality Argument and/or the Legitimate Expectation Argument, it appears to me no valid distinction can be made as to the 3 decisions of the Director. In other words, they should stand or fall together: see also Hong Kong and China Gas Co. Ltd v. Director of Lands [1997] 3 HKC 520, 524A-D;

(b) despite this, Mr Chu for the Director refused to accept this and submits that the 3 decisions should be treated separately.

I therefore consider it appropriate to make clear that in case it becomes necessary at the substantive hearing of this Application for arguments to be put forward in relation to each of the 3 decisions, the refusal of leave in relation to the 2 earlier decisions is not intended to prevent the Applicant from doing so.

Representation:

Mr Johannes Chan, instructed by Messrs Fok & Johnson, assigned by DLA, for the Applicant

Mr Caspar Chu, GC, instructed by the Department for Justice, for the Respondent