Unaj Limbu v. The Commissioner for Registration and Another

HCAL000136/1999

HCAL136/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS NO. 136 OF 1999

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Coram: Hon Seagroatt, J in Court

Date of hearing: 17 December 1999

Date of judgment: 17 December 1999

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J U D G M E N T

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COURT: The applicant seeking leave to apply for judicial review in this case claims to be the son of a former Ghurka soldier known as Makarjang Limbu and claims to be the person whose birth was registered in Hong Kong as being Unaj Limbu born on 12 September 1967 at Tam Mei, Hong Kong. His mother's maiden name is noted as "Hangsmati." The British Ghurkas' Pokhara Records Office have stated in a formal document that there was indeed a son born to the former Ghurka soldier on that date in Hong Kong and the given name is written as "Yograj."

2. The same office certificates that "Unaj" and "Yograj" are one and the same person. I do not know what the explanation is for the different given name of the son in the army records, but I am prepared to accept that it is of no significance in itself for the purposes of this application. It would be interesting, however, to know if either name has a particular meaning or association in Nepalese. A number of factors led to the adjudicators' rejecting his application for permanent residency in Hong Kong to which he would be entitled if he were able to establish that he is the self same Unaj Limbu born in Hong Kong on 12 September 1967.

3. I will deal with what are stated to be discrepancies in evidence by the same identification letter as used in paragraph 10 of the Decision.

(A) I am not entirely clear as to what is stated here, but I take it to mean that the applicant has failed to produce any document issued prior to May 1997, showing what given name was used. There is a reference to the "past identity assumed," the expression quoted by me, as not being reflected in the produced documents. But he says the given name "Yograj" was unknown to him. Though at present time, I am not inclined to pay much importance to the fact that there is discrepancy, it may be capable of easy and straightforward explanation.

(B) This is essentially the same point in (A).

(C) The point is not clear to me without further explanation at what school age, for example, is 6th class and I do not know where are the interview notes which do not appear to have been disclosed in the bundle which is with the file.

(D) This concerns the alleged father's name. There are variations in spelling, they are of no significance and I will discount them.

(E) The discrepancy between the "father's" date of birth in the army certificate of service, 1940, and the Nepalese citizenship certificate, August 17 1936, may well be accounted for by a desire to understate age on joining the British Forces in 1957. It may be that he had to be 17 or 18 years of age to eligible and that 21 would be too old. However, confusion is created by a Nepalese certification which corrects the citizenship certificate date to 15 July 1940. There is no explanation for that discrepancy.

(F)(i) This concerns firstly the mother's maiden name. The variation is of no consequence. However, she died in August 1981, yet she appears as a live member of the family which migrated to the address shown on her death certificate in 1991, 10 years after she is supposed to have died. That is a discrepancy of some significance.

(ii) The migration certificate does not contain the names of brothers and sisters who lived at the same address, according to their citizenship certificates and death certificates.

(G) The appellant has no knowledge of his father, having had three wives, according to a British Army record.

4. I notice also that on his original application of 27 March 1998, he included a brother as alive, whereas in fact, he died over five years earlier. By his second application, another brother had died, but he nonetheless included both of them as alive and on his third application, repeated the same situation. On this material, I can see how the adjudicators came to their conclusion. The discrepancies I have accepted are of such a nature that the decision, if resting on those which are themselves of such a nature as to call for explanation, and there has been no explanation, cannot be challenged as to its reasonableness.

5. However, I am told that the adjudicators also took into account matters on documents which the applicant's representatives were not allowed to see. They are identified in Mr Neil Thomson's skeleton submission and repeated by him before me today as Exhibits 28, 29A, B and C and 31. I have not seen these, as of course, the respondents are not yet a party to this application. I can see no justification for their being withheld. The decision makes no reference to their being withheld, yet assuming the numbering of the exhibits was carried out by the tribunal or its staff, they clearly have been omitted from my bundle. Only Exhibit number 29 is identified by reference to that number in the Decision.

6. In these circumstances, I think it is wholly unsatisfactory that a decision should be allowed to stand without further examination, and as Mr Thomson rightly sets out in paragraph 5 of his skeleton argument, there was, in my view, a clear breach of the rule of natural justice in refusing to the applicant a sight and copies of those particular exhibits, at least one of which formed part of the material considered by the adjudicators. It may well be that the others, though not identified specifically, also formed some part of the consideration.

7. In any event, such is the doubt as to this, that I think it would be wholly wrong for me to refuse leave. I think it is a matter that calls for detailed explanation. It may be in any event, at the end of the day, I do not know - I have not heard any arguments of course, on behalf of the respondents - that some form of testing or examination of material by way of DNA or fingerprint interpretation and identification may resolve this matter with great ease. Nonetheless, in these circumstances, leave to apply is granted.

Representation:

Mr Neil Thomson, instructed by Massie & Clement, for the Applicant