Gurung Kesh Bahadur v. Director of Immigration

HCAL000011/2000

HCAL 11/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

ACTION NO. 11 OF 2000

____________

____________

Coram: Hon Hartmann J in Court

Dates of Hearing: 3 and 5 May 2000

Date of Handing Down Judgment: 30 May 2000

_______________

J U D G M E N T

_______________

1. The Applicant in this matter is a citizen of Nepal where he was born and raised. He joined the British Army and, as a member of the Gurkha Regiment, was posted to Hong Kong. He served for some time in Hong Kong before retiring from the army in honourable circumstances at the beginning of 1994.

2. The Applicant's association with Hong Kong did not end with his departure from the army. In 1995, in circumstances which will be detailed later, he was granted permission to take up residence here and from that time until late 1997 he was ordinarily resident in the Territory. During that time he opened an employment agency and set up a construction business. It appears that both ventures remain in operation and that the construction business in particular has flourished.

3. In late October 1997, the Applicant flew out of Hong Kong on a visit to Nepal. He returned to Hong Kong on 4 November 1997. However, on his return, having been examined by officers of the Immigration Department, he was refused permission to land. A year later, on 14 December 1998, he was served with a removal order.

4. The Applicant now seeks by way of judicial review to quash both the refusal to land and the order for removal. Mr Harris, who appears for the Applicant, has argued two broad grounds. First, he has argued that the refusal to land, a decision made pursuant to section 11(10) of the Immigration Ordinance, Chapter 115 ('the Ordinance'), was unlawful in that it was in breach of Article 31 of the Basic Law and accordingly the later removal order, flowing directly from the earlier decision, was similarly unlawful. Second, he has argued that the decisions themselves were irrational or made under a mistake of fact or fatally flawed by an inadequacy of reasons given by the Director of Immigration to the Applicant.

A brief history

5. On 1 February 1994, shortly after his retirement from the army, the Applicant came to Hong Kong. At this time he was carrying a Nepalese passport in the name of Pun Tej Prakash, born 2 October 1961. After his arrival, he sought permission to take up employment in Hong Kong but failed to supply the necessary supporting documents.

6. The Applicant returned to Hong Kong on 18 October of that same year. On this occasion he was carrying a new Nepalese passport, also in the name of Pun Tej Prakash but showing a different date of birth; namely, 26 December 1961. On this second visit, the Applicant sought leave to start a business in Hong Kong. In January1995 this application was refused.

7. On 21 March 1995, the Applicant arrived in Hong Kong for a third time. On this occasion, he was carrying another Nepalese passport. This one was in the name of Gurung Kesh Bahadur and gave the date of birth by the year only: 1961. After his arrival, the Applicant applied for a change of status, seeking permission to remain in Hong Kong as a dependent of his wife, Madam Radhika Gurung, who, although Nepalese, had been born in Hong Kong and had right of residence here. This application was successful and on 8 June 1995 the Applicant was granted dependent status. He was permitted by the Director of Immigration to remain in Hong Kong for 12 months. Extensions of this defined period were later granted, the last extension being given on 2 July 1996 to expire on 9 January 1999.

8. At this juncture it should be mentioned that the Applicant and Madam Radhika Gurung, when they married in November 1994, had entered into a polygamous union. The Applicant had married his first wife in 1992, that wife remaining at all material times in Nepal. During the course of the hearing it was not disputed that polygamy is a lawful institution in Nepal. However, when the Applicant sought dependent status in Hong Kong, he did not inform the immigration authorities that he had a first wife still in Nepal.

9. On 28 October 1997, the Applicant flew out of Hong Kong. He spent a short time in Nepal and returned to Hong Kong via Bangkok on 4 November 1997. When he presented himself to the immigration authorities at the airport, he was in the company of a Nepalese woman named Madam Ghimine Pabita. Both were questioned by immigration officials and both were then refused permission to land.

10. When Madam Pabita was interviewed, she said that she had paid a sum of money to the Applicant to assist her to come to Hong Kong so that she could live and work here. She claimed that the Applicant ran some sort of agency business in Nepal which she had visited. She said that the Applicant had agreed to obtain papers for her including a false marriage certificate. She also alleged that the Applicant had coached her to give a false story if questioned by the immigration authorities.

11. It appears that the allegations made by Madam Pabita were not the first such allegations made in respect of the Applicant. Immigration records already contained evidence of two other matters which may be summarised as follows:

a. In January 1997, a Nepalese woman, Ms Gurung Ram Kumari, came to Hong Kong, ostensibly to join her husband, a Mr Nagendrakumar, and to reside here as his dependent. In support of her application she produced a Nepalese marriage certificate. This was a false document and in April 1997 the couple were arrested. Both claimed that the Applicant had acted as agent and had assisted them to deceive the immigration authorities. Mr Nagendrakumar further claimed that the Applicant had offered him $6,000 to act as a bogus husband.

b. In February 1997, a Nepalese woman, Ms Gurung Mina Kumari, came to Hong Kong as a visitor. After her arrival, she submitted an application for a change of status to remain here as the dependent of her husband and, to support her application, lodged a marriage certificate with the immigration authorities. This document proved to be false. When interviewed, she said that she had been approached by a man in Hong Kong who agreed to act as her agent in securing her right to live and work here. The agent, she said, had supplied the false marriage certificate. She was asked to study 12 photographs and identified a photograph of the Applicant as her agent.

12. In an affirmation dated 22nd March 2000, Senior Immigration Officer, Tam Hong Chung, said that he was the officer who made the decision that the Applicant should be refused permission to land. He gave 3 reasons for his decision:

a. the Applicant was believed to be working as an immigration consultant who was prepared to employ 'dubious methods' to obtain Hong Kong residence for his Nepalese clients;

b. it was suspected that he had entered into a 'bogus marriage' in order to obtain his own dependent status in Hong Kong, and

c. his true intent and purpose for staying in Hong Kong was 'in doubt'.

13. In respect of the suspicion that the Applicant had entered into a bogus or bigamous union with his second wife in order to secure dependent status, these suspicious were never substantiated.

14. In respect of the allegation that the Applicant had on several occasions assisted Nepalese citizens to make fraudulent applications for residence in Hong Kong, the immigration authorities did not at that time divulge such evidence to the Applicant nor did they institute criminal proceedings against him.

15. However, in November 1997, shortly after permission to land had been refused, the Applicant was prosecuted in terms of section 42(1)(a) of the Ordinance on the basis that in April 1992 and February 1994 - these constituting much earlier occasions when he had entered Hong Kong - he had made false representations to immigration officers concerning his true particulars. The trial was heard in the Magistrates Court in February 1998. The court found that the Applicant's travel documents were in all respects valid, the wrong particulars being entered by mistake by the Nepalese authorities who, by reason of bureaucratic inertia, then declined to correct them. As a result, the Applicant - if he wished to travel - had no choice but to do so using travel documents which he knew contained incorrect personal particulars. In light of these findings, the Applicant was found not guilty.

16. Notwithstanding his acquittal, on 10 December 1998, the Director of Immigration issued a removal order, the effect of that order being to give to the Applicant formal notice that he was to be expelled from Hong Kong.

17. As a person against whom a removal order had been made, the Applicant had the right to appeal to the Immigration Tribunal. But this was only on limited grounds; essentially on the basis that he enjoyed right of abode, had the right to land or, at the date when the removal order was made, he had the permission of the Director of Immigration to remain in Hong Kong. The Applicant chose to appeal on the grounds that, as his permission to stay in Hong Kong until 9 January 1999 had not expired, he had implied permission to return to and remain in Hong Kong until that date. His appeal was successful.

18. The Director of Immigration then sought to quash the decision on the basis that it had been wrong in law. The matter came before me by way of judicial review in November 1999. In a judgment dated 26 November 1999 (case number: HCAL 83/1999), I quashed the decision and issued an order of mandamus obliging the Immigration Tribunal to reconsider its decision in accordance with law. I am told that, pursuant to that judgment, there was a further hearing of the Immigration Tribunal on 11 January 2000 at which the Tribunal reversed its earlier decision and dismissed the Applicant's appeal.

19. Having exhausted other legal avenues, in January of this year the Applicant issued the present proceedings, seeking orders of certiorari to quash both the refusal to land and the later order for removal.

The Immigration Ordinance

20. The Applicant has made no claim to being a Hong Kong permanent resident who, in terms of section 2A of the Ordinance, enjoys right of abode. The Applicant has therefore, at all times, been subject to section 7 of the Ordinance which directs that a person who does not enjoy permanent residence may only land in Hong Kong with the permission of the Director of Immigration acting through his officers and assistants.

21. In order to exercise their discretion in determining whether or not to grant such permission, immigration officers and assistants have powers in terms of section 4 of the Ordinance to examine persons who are seeking to land in Hong Kong. If permission is granted, conditions may be imposed. In this regard, section 11(2) reads:

" Where permission is given to a person to land or remain in Hong Kong, an immigration officer or immigration assistant may impose -

(a) a limit of stay; and

(b) such other conditions of stay as an immigration officer or immigration assistant thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case."

22. It is not disputed that, while resident in Hong Kong, the Applicant was at all times subject to conditions imposed under section 11(2); more particularly, to specified limits of stay.

23. During the time that he was in Hong Kong and subject to these specified limits of stay, the Applicant made a number of overseas trips. As earlier stated, his last departure was on 28 October 1997. On each occasion that he left, I am satisfied that his permission to stay in Hong Kong fell away. In this regard, section 11(10) of the Ordinance reads:

" Any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure."

24. The meaning and intent of this section was at the heart of the earlier judicial review proceedings (case number: HCAL 83/1999) in respect of which I gave a judgment dated 26 November 1999. In that judgment I found no obligation to give to the section any form of purposive interpretation that implied an intention at odds with the plain meaning of the language:

"Section 11(1), in my view, is plain in its language when it says that, immediately upon departure, any permission to remain in Hong Kong shall expire. The word "expire" means to "bring to an end", to "die" or "conclude", to "make invalid or void" (see The New Shorter Oxford Dictionary, 1993 ed.) I can find nothing in such meanings to suggest a form only of suspension or some inherent implication of revival. Why in any event would the legislature wish such a permission to go into a form of suspension when the person was absent from Hong Kong and, therefore, outside of the jurisdiction? In my judgment, the subsection means exactly what it says and I am bound by that plain meaning."

25. I concluded that section 11(10) had the following consequence; namely, that if -

"a person who resides in Hong Kong in terms of a permission to remain leaves the Territory then his or her permission to remain automatically expires. This is so even if the permission to remain still has a period of time to run. Accordingly, when the person returns to Hong Kong and wishes to resume residence, effectively that person is seeking a new permission to do so and it lies within the discretion of the immigration authorities whether to grant that permission or not."

26. While the Applicant, upon his return to Hong Kong on 4 November 1997, was refused permission to land, he was not physically removed. Indeed, he remained here to face criminal charges. Section 18(2) of the ordinance therefore came into effect:

" A person who is refused permission to land in Hong Kong may not be removed from Hong Kong under subsection (1)(a) after the expiry of 2 months beginning with the date on which he landed."

27. However, section 19(1)(b) of the Ordinance empowers the Director of Immigration to order the removal from Hong Kong of a person who might have been removed by reason of a refusal of permission to land if the statutory time period of 2 months had not elapsed. The removal order by the Director of Immigration dated 10 December 1998 was issued in terms of that section.

28. When the Applicant appealed the issue of that order, the Director was obliged in terms of paragraph 8(1)(b) of the Third Schedule to the Immigration Regulations to give a written summary of the facts of the case and 'the reasons for the removal order'. Those reasons were stated in the following confined terms:

" Mr GURUNG was refused permission to land in the Hong Kong Special Administrative Region on 4 November 1997. He might have been removed from the Hong Kong Special Administrative Region under section 18(1) of the Immigration Ordinance if the time limited by section 18(2) of the said Ordinance had not passed: After investigation, it is satisfied that he has no legal claims on the Hong Kong Special Administrative Region."

29. No mention was made in that document of the reasons that are now central to the desire of the Director of Immigration to see the Applicant physically removed from Hong Kong; namely, the evidence that the Applicant has acted fraudulently in attempting to secure residence status in Hong Kong for a number of Nepalese citizens.

The constitutional challenge

30. Article 31 of the Basic Law secures for Hong Kong residents the freedom to travel. The Article, which appears in Chapter III of the Basic Law, reads:

" Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization." [my emphasis]

31. Article 29 defines 'Hong Kong residents' as including both 'permanent residents and non-permanent residents'. It then defines non-permanent residents as -

"... persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode."

32. It is not disputed that, in October 1997 when he flew out of Hong Kong, the Applicant was a person required by the regulations made under the Registration of Persons Ordinance, Cap. 177, to obtain and hold an identity card. He had, in fact, been in possession of a Hong Kong identity card since March 1995.

33. Mr Harris has argued that the Applicant was, therefore, in terms of the Basic Law a 'Hong Kong resident' and, by the plain language of Article 31, was guaranteed the freedom to travel out of Hong Kong and to enter again without let or hindrance. Any other interpretation, he said, would not only be 'strained' and fanciful' but would deprive non-permanent residents of 'the protection which the Basic Law clearly intended them to have'. That being the case, he has argued that, in so far as section 11(10) of the Ordinance purports to abolish the right of non-permanent residents to re-enter Hong Kong freely, that section contravenes the Basic Law and can be of no force or effect.

34. In his judgment in NG Ka-ling and others v. Director of Immigration [1999] 2 HKCFAR 4 (at pages 28 and 29) the Chief Justice provided guidance in the manner of interpreting the Basic Law:

"We must begin by recognising and appreciating the character of the document. The Basic Law is an entrenched constitutional instrument to implement the unique principle of 'one country, two systems'. As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances.

It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.

As to purpose, the purpose of the Basic Law is to establish the Hong Kong Special Administrative Region being an inalienable part of the People's Republic of China under the principle of 'one country, two systems' with a high degree of autonomy in accordance with China's basic policies regarding Hong Kong as set out and elaborated in the Joint Declaration. The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration.

As to the language of its text, the courts must avoid a literal, technical, narrow or rigid approach. They must consider the context. The context of a particular provision is to be found in the Basic Law itself as well as relevant extrinsic materials including the Joint Declaration. Assistance can also be gained from any traditions and usages that may have given meaning to the language used.

Chapter III of the Basic Law begins by defining the class constituting Hong Kong residents including permanent and non-permanent residents and then provides for the rights and duties of the residents, including the right of abode in the case of permanent residents. What is set out in Chapter III, after the definition of the class, are the constitutional guarantees for the freedoms that lie at the heart of Hong Kong's separate system. The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.

However, when interpreting the provisions that define the class of Hong Kong residents, including in particular the class of permanent residents (as opposed to the constitutional guarantees of their rights and freedoms), the courts should simply consider the language in the light of any ascertainable purpose and the context. The context would include other provisions of the Basic Law. Of particular relevance would be the provisions of the International Covenant on Civil and Political Rights (the ICCPR) as applied to Hong Kong which remain in force by virtue of art. 39 and any relevant principles which can be distilled from the ICCPR."

35. This dicta emphasises the need to consider any Article of the Basic Law in context and it is clear that Article 31 does not stand on its own. It must be read in conjunction with Article 39, that Article stating:

" The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." [my emphasis]

36. Article 39, therefore, anticipates that the rights and freedoms of Hong Kong residents may be limited when and where prescribed by law. This is subject only to the condition that such restrictions shall be compatible with the various international instruments referred to in the Article. In Secretary for Justice v. The Oriental Press Group Ltd and Others [1998] 2 HKLRD 123 Chan CJHC and Keith J (as he then was), in speaking of Article 27 of the Basic Law, said (at page 164):

" Thus art. 27 merely identified a particular group of fundamental rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. The effect of art. 39 is to permit restrictions on the rights protected in Chap.III, provided that those restrictions are provided by law (for example, art.16(3) of the Bill of Rights) and are compatible with various international instruments, including the International Covenant on Civil and Political Rights."

37. While Article 39 speaks of restrictions being compatible with the various international instruments referred to in the Article, it speaks only of those provisions which have been 'applied to Hong Kong'.

The International Covenant on Civil and Political Rights ('the ICCPR') contains provisions relevant to the right of persons to enter countries. In this regard, Article 12.4 of the ICCPR reads:

" No one shall be arbitrarily deprived of the right to enter his own country."

38. Frankly, I do not see how section 11(10) of the Ordinance, which applies only to persons who do not have right of abode in Hong Kong, can be said to be incompatible with Article 12.4 of the ICCPR. That article looks to the arbitrary deprivation of the right of a person to enter 'his own country'. That phrase, in my judgment, must be applicable not to tourists or visitors given limited privileges of residence but to citizens of a country or those endowed with what we call right of abode.

39. But even if I am wrong in that regard, I do not believe that I need to embark upon any comparative interpretation. I say so because, when the Government of the United Kingdom was still responsible for the affairs of Hong Kong, it entered certain reservations in respect of the ICCPR. One reservation applied to Article 12.4 and is recorded in the following terms:

"The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, the acceptance of Article 12.4 and of other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories." [my emphasis]

40. Accordingly, at the date when the Basic Law came into being, Hong Kong had reserved the right to continue to apply immigration legislation governing those persons who do not have the right under our law to enter and remain in the Territory. This is so even if such legislation is incompatible with Article 12.4 of the ICCPR. Section 11(10) of the Ordinance applies only to those people who do not have the right to enter and remain but must seek the permission of the Director of Immigration to do so and may only stay for prescribed periods of time. That being the case, I do not see how it can be said that section 11(10) offends Article 31 of the Basic Law, not when Article 31 must be read with Article 39.

41. I note also that the Bill of Rights recognises the special position of Hong Kong's immigration legislation. Article 11 of the Bill 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 any such legislation."

42. In the circumstances, I am satisfied that the Applicant's constitutional challenge to the legality of the actions taken against him by the immigration authorities pursuant to section 11(10) of the Ordinance must fail. Article 31 of the Basic Law does not confer upon the Applicant an absolute right. It is right that may be prescribed by law and has been so prescribed.

The 'Wednesbury' challenge

(i) A failure to prosecute.

43. In November 1997, when the Applicant was refused permission to land, the immigration authorities had in their possession evidence of three separate matters in which the Applicant was alleged to have conspired with other Nepalese nationals to obtain residence for them by fraudulent means. Indeed, one of those matters sprang from admissions made by the woman who accompanied the Applicant back to Hong Kong from Nepal. It is true that the immigration authorities did not proceed to prosecute the Applicant in respect of his alleged activities but I do not believe that reveals any bad faith or perverse conduct amounting to procedural unfairness on the part of those in whom the discretion to prosecute is vested. There may be many reasons why a prosecution does not proceed; for example, the inability to bring witnesses to trial.

44. I believe that Stock J correctly set out the position of the Director of Immigration in matters of this kind when, in the case of Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999 he said:

"The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one. It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case. To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits. Where the determination of facts are left to the Director and the facts sweep across a range 'from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely': see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518."

45. Mr Harris has contended on behalf of the Applicant - and here I quote from his skeleton argument - that :

"... the only offences with which the Applicant was charged after his refusal were offences of which he was subsequently acquitted. If a person is accused or suspected of any offence, no matter how serious, the correct and fair procedure, if the evidence is strong enough, is to charge them and have the matter investigated by a court. It cannot be reasonable to simply refuse a resident re-entry to Hong Kong on suspicion ..."

46. But, as Stock J said, the legislature has entrusted to the Director of Immigration (acting through his officers) a wide discretionary power to grant or refuse permission to land in Hong Kong to persons who have no right to reside here. That discretion is not dependent in any way on the institution and outcome of criminal proceedings even where, on the contemplated evidence, a criminal offence may be revealed. If in the circumstances of an individual case there are facts to be decided then the decision is one to be taken by the Director and the court has no power to intervene save in a case where it is shown that the Director has acted irrationally or perversely.

47. Was the Director somehow or other deceiving the Applicant into believing that the grounds for refusing permission to land lay in the prosecution only and thereby acting unfairly to him? I hope I do no injustice to Mr Harris when I say that he appeared to imply as much. But I see no force in this argument. There may rationally have been a number of grounds upon which the refusal of permission to land had been issued. The Director of Immigration never held out that the criminal proceedings that were instituted constituted the sole basis for refusing permission to land. When a general challenge to the legality of the actions taken by the Director was mounted by way of judicial review then the reasons were divulged.

48. In the present instance, the Director possessed evidence from three separate and seemingly independent sources that the Applicant was conspiring to commit immigration offences. They were offences of some gravity. It was the responsibility of the Director to consider that evidence, to weigh its credibility and to decide what action to take in the light of the evidence that he or his authorised officers chose to accept. It is apparent from the various records of interview that the evidence was, at face value at least, possessed of some cogency. I cannot see how the decision to rely on that evidence can therefore be criticised as being irrational or perverse or 'Wednesbury unreasonable'.

49. It appears to me that, in essence, Mr Harris has argued that the decision to rely on the evidence was unreasonable because it not only constituted a reliance on 'untested' allegations but was compounded by procedural unfairness. I have already said that, in my judgment, the Director had no duty to prosecute in the criminal courts to 'test' the evidence; the duty was solely to consider the evidence and to make the necessary decisions of fact according to law.

(ii) Legitimate expectation.

50. Mr Harris also argued as an extension of his irrationality submissions that, having been granted the right to stay in Hong Kong until 9 January 1999, when he returned from his overseas trip, the Applicant had a legitimate expectation that he would be allowed back if only until 9 January 1999. As he expressed it in his skeleton argument:

"While it may be true that a stamp in a passport does not give rise to such expectation, the Applicant had every reason to expect that in the circumstances of his case he would be permitted to remain in Hong Kong till 9 January 1999 provided that he was not found to have committed an offence."

51. With respect, I do not see how the particular circumstances of the Applicant's case bestowed upon him in particular a legitimate expectation that he would be allowed to re-enter Hong Kong. As I understand it, he had received no oral undertaking, direct or indirect, that he would be allowed back without question. He fell into no particular 'category' of persons; he carried no collateral documentation assuring him somehow of residence. In my judgment of 26 November 1999, I dealt at some length with submissions made by Mr Harris as to legitimate expectation. There is no need to repeat my findings. Suffice to say, I remain satisfied that the plain words of section 11(10) of the Ordinance negative any suggestion of legitimate expectation.

(iii) Procedural fairness: inadequate reasons.

52. But what of the matter of procedural fairness? The Director and his officers must, of course, act with procedural fairness. A failure to do so is a denial of natural justice. But procedural fairness is not to be defined within narrow parameters. In Judicial Review of Administrative Action by de Smith, Woolf and Jowell, 5th edition, the authors say at page 431 (9-002):

" The content of fair procedures is therefore infinitely flexible. It ranges from mere consultation at the lower end, upwards through an entitlement to make written representations, to make oral representations, to a fully fledged hearing at the other extreme with most of the characteristics of a judicial trial. What is required in any particular case is incapable of definition in abstract terms. As Lord Bridge has put it: "the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, 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, the kind of decision it has to make and the statutory or other framework in which it operates."

53. In looking at the statutory framework, I can see no reason why an immigration officer who, in terms of section 11(1A) of the ordinance, refuses permission to land to a person seeking that permission must at the time of refusal give reasons for his decision. When a person seeks to obtain permission to land in Hong Kong, the burden is on him to show that his circumstances are such that permission should be granted. It is not at that time for the immigration officer to have to show that the person falls outside of the ambits of policies adopted in terms of which permission will be granted: see Aita Bahadur Limbu v. Director of Immigration supra. Of course, if the lawfulness of the refusal of permission to land is challenged by way of judicial review then reasons need to be supplied. But there was no such challenge in respect of the notice of refusal served on the Applicant.

54. In fairness, Mr Harris did not argue that reasons should have been given when the notice of refusal was served on the Applicant. He has argued, however, that reasons were required when the removal order made in terms of section 19(1)(b) of the Ordinance was served and when that order was challenged by the Applicant by way of appeal to the Immigration Tribunal. The reasons given on this occasion, he said, were not adequate to enable the Applicant to know, even in broad terms, why the decision to order his removal had been made. The reasons given by the Director pursuant to paragraph 8(1)(b) of the Third Schedule to the Immigration Regulations (which are quoted in full earlier) said only that the Applicant had been refused permission to land and that he might have been removed in terms of section 18(1) of the Ordinance if the two month time limitation imposed by section 18(2) had not expired. No mention was made of allegations that the Applicant had conspired with others to illegally obtain residence status for them.

55. If the Immigration Tribunal was endowed with broad supervisory jurisdiction to consider the general merits, I would be inclined to agree with the submissions made by Mr Harris. But, as Mr Fitzpatrick, for the Respondent, has pointed out, the Tribunal acts within a narrow jurisdiction, a jurisdiction limited essentially to defining the true status of an appellant or whether an appellant has the permission of the Director of Immigration to remain in Hong Kong. In this regard, section 53D of the Ordinance sets out the powers of the Tribunal to determine appeals made to it, subsection (1) reading:

"On an appeal under section 53A against a removal order -

(a) where the Tribunal determines that on the facts of the case as it finds them the appellant -

(ia) does not enjoy the right of abode in Hong Kong; and

(ib) does not have the right to land under section 2AAA; and

...

(ii) does not, disregarding the effect of the removal order under section 19(4), have the permission of the Director of Immigration to remain in Hong Kong.

it shall dismiss the appeal; and

(b) in any other case, subject to subsection (3), it shall allow the appeal and rescind the removal order."

56. In my judgment, Mr Fitzpatrick was correct when he said that the reasons supplied by the Director, when read with his accompanying summary of facts, were sufficient to enable the Applicant to prosecute his appeal and for the Tribunal to adjudicate upon it. The reasons made it clear, if only by necessary inference, that the refusal of permission to land was made because the immigration authorities did not believe that the Appellant enjoyed right of abode in Hong Kong or had the right to land or had permission to remain in Hong Kong.

(iv) Delay.

57. Mr Harris argued that the central reason now relied upon by the Director of Immigration to enforce the Applicant's removal was only made known to the Applicant some two years after the serving of the removal order, the inference being that this protracted delay was of itself perverse so as to be 'Wednesbury unreasonable'. I cannot agree. It may perhaps be argued that it would have been prudent of the Director of Immigration to advise the Applicant earlier. But I am concerned with the legality of the Director's action not with the prudence of his administrative practice. What must be remembered is that the Applicant only chose to make a broad challenge to the legality of the Director's actions when he made an application to apply for judicial review in January of this year. It was in reply to that challenge that the affirmations of Assistant Principal Immigration Officer, Chun Yiu, and Senior Immigration Officer, Tam Hong Chung, setting out details of the allegations of fraudulent practice by the Applicant, were filed in March. I am, therefore, satisfied that the Applicant has not suffered procedural unfairness as a result of the alleged delay in advising him of the allegations of fraudulent practice and that he has been given sufficient time to answer the case put forward by the Director of Immigration..

58. The reasons referred to in the affirmations of the two immigration officers may not have appeared in the formal order of removal (or any other formal document issued by the Director in terms of the Ordinance) but I do not see that the giving of reasons in affirmation form only is an indicator of procedural unfairness. In this regard, for example, I consider Ahmad Moamen Zadeh Jahromi v. Secretary of State for the Home Department [1996] Imm AR 20 to be supportive, the headnote reading:

" The reason given in the decision letter was not in itself adequate. Had it stood on its own, leave to move for judicial review would have been granted. Further reasons, adequate in the circumstances, were however before the court in affidavits."

(v) Mistake.

59. It is true that not all the reasons relied upon by the Director of Immigration for originally refusing permission to land have proved to be sound. It may be argued that the immigration authorities were labouring under a mistake of fact in suspecting the Applicant of having contracted a bigamous union with his second wife in order to acquire dependent status in Hong Kong. I further accept that, without further clarification, the reason expressed to be a doubt as to the Applicant's true intent and purpose for staying in Hong Kong is too vague to take the matter further. But in my opinion, what cannot be ignored is the fact that from the outset the immigration authorities were in possession of detailed evidence suggesting that the Applicant had conspired with others to fraudulently and criminally undermine Hong Kong's immigration laws. It defies logic to suggest that this detailed evidence was not at all material times a major reason for seeking the Applicant's physical removal from Hong Kong. Nothing has been placed before me to suggest that this evidence is incapable of acceptance and I am satisfied that, even if other reasons may have proved to be mistaken or are now incapable of being described as anything more than conjecture, that remaining reason - a distinct and identifiable reason - is sufficiently cogent to stand on its own.

60. In the circumstances, the Applicant's challenge by way of judicial review to the decisions of the Director of Immigration to issue both the refusal of permission to land and the later removal order must fail.

61. My orders therefore are that the application be dismissed and that there be an order nisi for costs in favour of the Respondent, to be taxed if not agreed.

Representation:

Mr Paul Harris, instructed by Messrs Jal N Karbhari & Co., for the Applicant

Mr David Fitzpatrick, instructed by Secretary for Justice, for the Respondent

Remarks:
Appeal by Applicant to the Court of Appeal. Appeal allowed. Please refer to the Appeal Judgment CACV000216/2000.