Re Hui Kat Fan and Another

HCMP001526/1992

HCMP No. 1523 OF 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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HCMP No. 1526 OF 1992

(Joint Trial Ordered By Consent on 17th September 1992)

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Coram: Hon. Liu, J. in Court

Dates of hearing: 17th, 18th & 21st September 1992

Date of delivery of judgment: 28th September 1992

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J U D G M E N T

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The motions in these Miscellaneous Proceedings Nos. 1523 and 1526, both of 1992 were, by consent, jointly heard.

In MP1523, a mother of two Hong Kong born young, children is the target of a Removal Order. In MP1523, a mother and her almost 11-year-old child are subjects of Removal Orders, leaving behind in Hong Kong her other three young children. The five young children, two in the former case and three in the latter case, were all born in Hong Kong whilst their mothers were illegal immigrants from the Mainland. The father in the former case, MP1523, being "slightly mentally retarded", has been incapable of rendering any assistance to his family, and his obligations have been assumed by his ailing father and brothers. The mother-in-law, paralysed after a traffic accident, died in November 1991. The father in the latter case, MP1526, is a delivery worker and the couple have no close relatives in Hong Kong, who could care for their three Hong Kong born young children.

In each case, there is evidently a need for the mother to continue to attend to her young children in Hong Kong. It is undesirable for the family to be torn apart.

Article 19(1) of the Hong Kong Bill of Rights provides that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State". That is taken from Article 23 of the International Covenant on Civil and Political Rights. The Statement in each case has raised no Bill of Rights issues, but mother care and togetherness of a family are not matters alien to humanitarian grounds in immigration investigations.

In both cases, Removal Orders were made after the Deputy Director of Immigration had considered requiring the illegal immigrants to leave Hong Kong under the provisions of the Immigration Ordinance, viz. s. 19 (1) (b) (ii) and s.13. In MP1523, the mother applicant thereafter sought a general stay' under s.13 of the Immigration Ordinance. In MP1526, the request subsequently made was also for a general stay under s.13 with an alternative plea to allow the mother and her eldest child to remain initially for a period of 12 months renewable, presumably on review, upon its expiration.

The relevant portion of s. 19 (1) (b) (ii) of the Immigration Ordinance reads:-

1. S.13 provides :-

2. In each case, on behalf of the Director of Immigration, it was stated that all the circumstances "had been carefully considered before' the issue of removal order (orders) against her (them)"

The Director's power under both s. 19(1) (b) (ii) and s 13 is discretionary, and in these proceedings it is readily assumed to be of the like nature and scope. As the Director of Immigration had obligingly entertained the applicants' requests made under s.13, Mr McNamara did not pursue his argument that aliens had no legal right to any immigration determination and Mr Barlow found it quite unnecessary to invoke s.13, the effect of which would arguably confer on,all aliens as illegal immigrants a right to apply for an authorized stay. It was submitted by Mr Barlow, counsel for all these applicants, that the Director failed to discharge the duty imposed upon him by s.13, with the result that he did not address his mind to existing strong humanitarian grounds. Alternatively, if he did, his decisions are perverse, "so absurd that he must have taken leave of his senses". R. v. Secretary of State for the Environment, Ex parte Nottingham County Council,[1986] AC 240, 247 per Lord Scarman. The Director was said not to have even begun any deliberation on on these subsequent s.13 applications by his "adherence or harking back to" his reasoning for the previous decisions, made much earlier in time, to issue the Removal Orders. Criticism was also levelled at the Government Policy to remove illegal immigrants in the absence of strong or powerful humanitarian reasons, which was said to have severely hampered the free exercise of an otherwise unfettered discretion under s 13. Counsel fell short of attacking that policy as being ultra vires.

The applicants crave an Order to quash the Director's decisions and an Order to direct him to re-exercise his discretion under s.13 on all the proper considerations. The Amended Statements set out in the Amended Grounds For Relief are not issimilar in both motions :-

There was an additional ground for MP1526 based on the then questioned status of the youngest child who has since been restored her right of abode in Hong Kong. No submission was advanced on that additional ground which must be taken as redundant.

In the material surrounding circumstances, the plea of these two families, put by Mr Barlow as the gravamen of the applicants' argument; lies in the need of the Hong Kong born children to be cared for by their mother and the desire for an unbroken family unit.

The first issue taken by Mr Barlow on behalf of the applicants is the contended inadmissibility of paragraph 22 of Mr John Yeung's affidavit in both motions. It is trite law that the decision-making process of an administrative authority is generally to be tested on the material considerations placed before it.

As Lord Russell of Killowen observed in Secretary of States for Education and Science v. Tameside Metropolitan Borrugh Council [1977] AC 1014 at p.1076.:-

Lord Russell acknowledged the necessity for the Secretary of State to acquaint himself with the relevant facts within the knowledge of his own department. See also R. v. Environment Secretary, Ex parte Powis (C.A.),[1981] 1 WLR 584 at p.597 c/d - e/f.

3. Mr Barlow did not question the wisdom of this proposition. Paragraph 22 of the affidavit of the Deputy Director of Immigration seeks, in both cases, to eliminate those new facts which were disclosed after his s.13 determinations now being impeached. In MP1523, his paragraph 22 names the subsequent medical reports which were not even chosen by Mr Barlow to be read in these proceedings.

This Court was told that Mr Barlow would not rely on any information disclosed after the deliberation of the Deputy Director of Immigration made on these s.13 requests. It would seem that counsel seized upon this technical issue in what could only be an exercise in futility. Without descending upon particulars, counsel argued that the belatedly disclosed information was not new but was a matter of common knowledge. The Court was not assisted as to how knowledge of such new information could be imputed to the Deputy Director.

In any case, Mr Barlow conceded that the new information was, by and large, irrelevant, mere comments, embellishments and common occurrences in any young family such as health problems of minors and endless daily chores of the mother. Mr Barlow concluded that in essence this new evidence was insignificant and would advance the applicants' cases no further. Should Mr Barlow's technical objection be capable of serving any interest of the applicants, it may be disposed of briefly.

Counsel submitted that hearsay evidence on affidavit could not be used at trial. Hearsay affidavit evidence is permitted only for interlocutory proceedings. See 0.41, r.5, RSC. For the reasons propounded in Re J.L. Young Manufacturing Company [1900] 2 Ch 753, C. A and Lumley v. Osborne [1901] 1 KB 532, hearsay evidence must disclose the source of the information. Paragraph 22 in each case merely states that the Deputy Director was advised. There is no disclosure of the source of his information. For these reasons, Mr Barlow argued that paragraph 22 is inadmissible.

0.41, r.5 governs the use of affidavit at different stages in legal proceedings for establishing facts. . Paragraph 22 of the Deputy Director's affidavit refers to information, hearsay or otherwise, which he would regard as probative evidence, reliable enough to be taken into account. The Deputy Director must necessarily depend on his staff, subordinates, experts and other sources for ground information to make his decision. It is open to an authority to found its determination, wholly or in part, on hearsay. See p.215 de Smith on Judicial Review of Administrative Action, 4th Edition. It would not be bound by the strict rules of evidence. It is charged with the duty of evaluating a given situation and reaching a balanced view by any means it deems appropriate. Hearsay is always a legitimate source of inforamtion provided it^-can be fairly regarded as reliable and logically probative. Diplock, L.J., as he then was, summed up succinctly in R. v. Deputy Industrial Injuries commissioner, Ex parte Moore [1965] 1 QB 456 at p.488 C/D-F:-

An authority must be left to collect and collate, in its own way, such probative evidence from every conceiveable source for its proper evaluation. A strict application of the protective "best evidence rule" would tend to defeat the very purpose of establishing most extra-curial bodies.

By paragraph 22, the Deputy Director is not seeking to establish facts. He sets out what he has been advised as the new information of which he was not in possession at the time when he deliberated on the s.13 requests. His.advice may comprise hearsay on which he was entitled to act.. The Court may be fed the information he so relied on. With or without disclosure of the source of his information, evidence such as that in paragraph 22 is admissible and is in fact frequently entertained at the hearing of an application for judicial review. In Judicial Review, instances of a factual challenge are rare. After all, only the decision-making process is reviewable, and the courts are almost invariably unconcerned with errors in findings of fact. Mr Barlow's submissions on 0.41, r.5, must, therefore, fail.'

Having dealt with paragraph 22, co unsel proceeded to focus on three questions : whether the Deputy Director had taken into account all the material considerations, whether the applicants have shown a prima facie case of the Deputy Director giving a wholly meaningless standard response, and if so whether the prima facie case of his neglect to consider or consider fully the s.13 requests has been satisfactorily rebutted.

Mr Barlow was highly critical of the Deputy Director's decisions. He charged that the Deputy Director made no findings of fact, provided no reasons, and gave his conclusion in a "ritual incantation". Counsel was not seeking to argue these criticisms as independent grounds but these references were made in support of his submission that the Director had not attempted to make any determination on the applicants' s.13 requests.

At common law, even the courts are not obliged to provide reasons. See pp. 148 and 195, de Smith Judicial Review of Administrative Action, 4th Edition. That has fortunately been overtaken by common sense. This Court was led through a passage in wade on Administrative Law,6th Edition, p.936 :-

Counsel sought to derive further support from the observations of Sir John Donaldson, M.R. in R. v. Lancashire County Council, Ex parte Huddleston [1986] 2 AER 941 at p.945 g/h, p.945 j - p.946 b :-

In R. v. Home Secretary Ex parte Swati [1986] 1 WLR 477, at p.483 G-H, the same Sir John Donaldson, M.R. spoke of "empty formula" :-

That the giving of reasons is pre-eminently fair and desirable, was echoed by Lord Justice Woolf in one of his 1989 Hamlyn lectures, "Protection Of The Public - A New Challenge". But even the learned Lord Justice who is partial to the robust development of administrative law chose to sound a warning note at p.94 :-

One should also take heed of the advice proffered by Lord Templeman in R. v. Independent Television Commission Ex parte TSW Broadcasting Limited, the judgment of their Lordships' House was delivered on 26th March 1992. At p.16 of his Lordship's speech, he had this to say :-

In a foreword to "Judicial Review of Administrative Action in the 1980s, Problems and Prospects", Lord Wilberforce expressed in 1986 the following sentiments:-

In these proceedings, the Deputy Director leaned heavily on Government's stated policy on the removal of illegal immigrants since 1980. That policy is that these entrants "should all be returned unless there are considered to be strong or powerful humanitarian reasons for doing otherwise in individual cases". An important aspect of the policy is that the circumventing of the long waiting period through the lawful channels by any foul or unfair means should not be countenanced. It was not suggested that such an official policy is erroneous; nor was it contended that in these cases, the Deputy Director of Immigration could not base his decisions on broad considerations of policy. What was complained of is that if the Deputy Director had purported to exercise his s.13 discretion, he allowed himself to be unduly influenced by the policy and failed to keep a balanced view of the other relevant matters.

In weighing the interest of the individual against, that of the community as reflected by any particular administrative policy, the interest of the individual immediately concerned often suffers in achieving an evenly balanced decision. The Deputy Director was duty-bound to take into account all relevant considerations and to pay no regard to irrelevant considerations. On the affidvait of the Deputy Director in each case, Mr McNamara succeeded in demonstrating that the Deputy Director had studied the record files and related documents including details and result of departmental enquiries, he had considered the submitted letters and other communications together with an additional statement by the mother applicant in MP1523 given at an interview on 17th December 1991.

In MP1526, a comparison was made of the previously known facts with those presented for the s.13 applications. The Deputy Director noted that the 7 years' stay of the mother was unlawful, that the youngest child had since secured her right of abode, that there were no close relatives in Hong Kong but that no new or fresh facts emerged. On the given facts, new or otherwise, which the Deputy Director did not query, the s.13 requests were thereupon re-assessed. It is reasonably clear that the Deputy Director accepted those facts in his consideration of the s.13 requests. It would not be right to condemn the Deputy Director for making no specific findings of fact. He identified those facts with reasonable clarity and mention was made of certain exceptions. Aided by the groundwork done by his department, the Deputy Director concluded that the material circumstances were no different and that they were the same as those placed before him at the time when the removal orders were under consideration. That led to his department's statement that "as a matter of fact, the circumstances of (the applicants) had been carefully considered before the removal orders were issued aginst them". There is room for more precision in its language and, perhaps, a fuller explanation. But as it stands, that statement could not be said to be open to just criticism.

In Mp1523, similarly a re-assessment was undertaken in the mother's s.13 application. Here the later circumstances were more varied, and the statement made on behalf of the Director in like terms would seem to be confusing. It is decidedly less than accurate to assume the same stance that her circumstances "had all been carefully considered before the issue of removal order against her".The inaccuracy is venial and did not have the effect of nullifying an otherwise appropriately deliberated decision. The fact remains that the same extensive re-assessment process was attempted. The Deputy Director has similarly outlined his like approach.

In R. v. Independent Television Commission, Ex parte T. S. W. Broadcasting Limited, supra., Lord Templeman reminded us not to allow judicial review "to run riot" and to try to curtail "the practice of delving through documents and conversations and extracting a few sentences" to produce doubt and confusion. The Deputy Director's affidavit in each motion is not empty formula. In these two cases, the disclosures made by the Deputy Director are sufficient and his fact finding process has been shown to be un-reviewable. At the conclusion of his evaluation, the Deputy Director's conclusion was : none of the material considerations would have the effect of overriding the Government stated policy on immigration. It can never be suggested that it is a decision no reasonable authority could have made. It would be wholly preposterous to accuse the Deputy Director of having taken leave of his senses.

In my view, no good cause has been shown that the manner in which the Deputy Director deliberated and reached his decision was inadequate, wrong or otherwise improper. His decision-making process cannot be faulted. For all these reasons, both motions are to stand dismissed.. I would make an order nisi for costs in favour of the Director of Immigration. The applicants' own costs are to be taxed according to Legal Aid Regulations.

Representation:

Mr B. Barlow, instructed by Messrs. Wong, Hui & Co., for the Applicants.

Mr J. McNamara & Mr Y.M. Liu, Crown Solicitor, for the Respondent.