Li Fu Shan v. The Director of Immigration and Another

HCAL000813/2001

HCAL 813/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 813 OF 2001

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Coram: Hon Hartmann J in Court

Dates of Hearing: 2 and 3 May, 21, 22 and 23 October 2002

Date of Handing Down Judgment: 7 November 2002

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J U D G M E N T

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Introduction

1)On 16 June 1991, the applicant, a native of Fujian Province, came to Hong Kong to be united with his family here; that is, his adopted family not the family into which he had been born. He came to settle in Hong Kong on the strength of a document called a One Way Permit issued to him on the Mainland by the Bureau of Exit-Entry Administration ("the Mainland Bureau"), a branch of the Ministry of Public Security.

2)The permit was issued to the applicant in terms of a scheme agreed between the Hong Kong and the Mainland authorities to allow for the orderly but limited entry of Mainland residents into Hong Kong, essentially (to date) for the purpose of family unification. In terms of the scheme, it was and remains solely for the Mainland Bureau to determine policy relevant to the management of the scheme; for example, how best administrative procedures are to be managed and who should have preference in any queue of applicants.

3)I am told that at the time when the applicant came to Hong Kong, the scheme allowed for entry of the equivalent of 75 persons per day. Mr Marshall SC, leading counsel for the 1st respondent, without dissent, has described One Way Permits issued under the scheme as being 'as precious as gold dust'; that is, permits for which there is much competition.

4)On the basis that he was the holder of a One Way Permit lawfully issued by the Mainland Bureau, the applicant was allowed to settle in Hong Kong. However, on 2 June 2000, nine years later, the 1st respondent, the Director of Immigration ("the Director") served a notice on the applicant ordering his removal from Hong Kong. The notice was served pursuant to s.19(1)(b)(ii) of the Immigration Ordinance, Cap.115 ("the Ordinance") which reads :

" A removal order may be made against a person requiring him to leave Hong Kong-

(a) ...

(b) by the Director if it appears to him that that person

(i) ...

(ii) has (whether before or after commencement of the Immigration (Amendment) (No. 4) Ordinance 1981 (75 of 1981)) landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him."

5)The removal order was issued on the basis that the applicant's One Way Permit had been obtained unlawfully and therefore he had landed in Hong Kong unlawfully. Assertions as to the unlawfulness of the applicant's One Way Permit had been made by the Mainland Bureau. In an affidavit dated 3 November 2001, the officer who recommended that the applicant be removed from Hong Kong, Acting Principal Immigration Officer, Chun Yiu, explained the reason for the issue of the removal order in the following terms :

"By producing his travel document upon his entry to Hong Kong in 1991, he [the applicant] represented that his One Way Permit was lawfully obtained. This implied representation was untrue in view of the clear evidence from Mainland China. Therefore, from the beginning the Applicant's stay had been null and void and he had landed unlawfully without the permission of an immigration officer or an immigration assistant. It appeared to the Director on reasonable grounds that the Applicant had landed unlawfully. The Applicant had no claim upon Hong Kong."

6)The applicant appealed against the removal order to the Immigration Tribunal on the basis that, in terms of s.53A(1)(b) of the Ordinance, he had at the date when the removal order was made the permission of the Director to remain in Hong Kong.

7)The appeal hearing commenced on 14 August 2000 but, for reasons which will be explained, was adjourned to 23 March 2001. At the conclusion of the hearing, by a notice of determination dated 24 April 2001, the appeal was dismissed.

The grounds of challenge

8)The applicant now applies for an order of certiorari to quash the decision of the Immigration Tribunal dismissing his appeal. He does so on the following grounds; namely

(i) that the Tribunal failed adequately to give reasons for its determination;

(ii) that it failed to apply the correct burden and standard of proof;

(iii) that its finding on the evidence that the applicant's One Way Permit had been unlawfully obtained was a decision which no reasonable tribunal could reach;

(iv) that in any event the facts allegedly giving rise to the unlawful obtaining of the permit were not material in the sense that, even if demonstrated, they were not capable of vitiating the lawful issue of the permit to the applicant.

9)It is to be noted that the decisions challenged are those of the Immigration Tribunal. As is proper in these cases, the Immigration Tribunal has not been represented. However, the Director has appeared as an interested party to support what he contends is the lawful determination of the Tribunal.

10)As to the determination by the Immigration Tribunal that the applicant had obtained his One Way Permit unlawfully, it is based on two factual matters; namely, that when he applied for his One Way Permit the applicant

(i) failed to reveal that he was not the natural son of the parents with whom he wished to be united in Hong Kong but was instead their adopted son, having been adopted at about the age of 13;

(ii) although a native of Fujian Province, he made his application to the offices of the Mainland Bureau in An Hui Province, failing to correctly state how long he had resided in An Hui, stating he had lived there since 1983 when in fact he had lived there a much shorter period, since about 1986 or 1988.

11)These two factual issues lie at the heart of this matter. However, they cannot be fully understood unless they are placed into a broader historical context.

The background

12)The applicant was born in a village in Fujian Province in July 1971. His natural parents were Li Wu Jiu, his father, and Huang Nia Duan, his mother. At birth, the applicant was given the name of Li Fu Shan.

13)The applicant's natural parents were seemingly friends with another married couple from the same village, Li Wen Biu and his wife, Luo Yu Wu. In 1978, Li Wen Biu, his wife and their five children were granted permission to come to Hong Kong. They did so and settled here. However, Li Wen Biu and his wife maintained contact with their native village.

14)In 1984, the applicant was adopted by Li Wen Biu and his wife. As I have said earlier, he was about 13 years old at the time. The adoption was not formally processed through any state organization nor registered in any official registry. It was instead, I am told, carried out in accordance with prevailing custom. It is not clear whether that was according to local custom or a more broader based custom. But it has not been disputed that it was nevertheless a binding adoption.

15)The adoption came about in the following way. While in Hong Kong, Li Wen Biu and his wife's eldest son committed suicide. This left an emotional void in the family. The wife, Madam Luo, was especially distressed. In order to fill the void, an agreement was reached with the applicant's natural parents that Li Wen Biu and his wife would accept the applicant into their family as an adopted son.

16)After the adoption, the applicant's name was changed from Li Fu Shan to Li Ah Chung. This was done apparently so that the applicant's name would be more similar to the name of another son in the family, giving the appearance that they were brother's by blood and not by adoption.

17)In either 1986 or 1988 (the year is not certain), the applicant moved from his native province of Fujian to An Hui Province. He was at that time a teenager and has asserted that he moved to find work.

18)After his arrival, the applicant approached the office of the Mainland Bureau in An Hui Province to seek a One Way Permit. His application was based on his desire to join his parents and his siblings in Hong Kong. On the available evidence, the application did not reveal that the applicant was an adopted child as opposed to a natural child.

19)In 1991, some two to three years later, the applicant was granted his One Way Permit and came to Hong Kong. On the strength of the permit issued to him by the Mainland Bureau in An Hui Province that is, on the basis that the permit was lawfully obtained the applicant was granted permission to remain in Hong Kong until June 1992. That permission was extended to March 1999 and later extended again until 2006.

20)It appears that in or about 1991 the Immigration Department received three anonymous letters saying that the applicant had assumed the name of Li Ah Chung in order to come to Hong Kong and that his true name was Li Fu Shan. The allegations, however, were not investigated at that time.

21)In 1995, the applicant married a Mainland woman, a fellow native of Fujian Province, Lam Tung Yung. On the basis that her husband was settled in Hong Kong, the wife was herself granted a One Way Permit and came here to join her husband. In December 1998, a daughter, Li Xi, was born of their union in Hong Kong. I am told that the husband's predicament may also undermine the wife's right to reside here although the child's rights will remain unaffected. The wife's uncertain position, of course, is another matter and is not for this Court at this time.

22)In September 1997, the applicant renounced the name of Li Ah Chung, given to him when he was adopted, and assumed his birth name of Li Fa Shun. This was done by deed poll.

23)By June 1998 the applicant had been ordinarily resident in Hong Kong for seven years and set about obtaining a permanent identity card. It was this application which set in train a process of investigation which resulted in the Director's decision to issue an order of removal.

24)In December 1998, the applicant was interviewed, the content of the 1991 anonymous letters being put to him. It is accepted that the applicant lied in that interview, those lies being made for whatever motive in an attempt to conceal that Li Fu Shan was his birth name and that therefore he was adopted. In this regard, the following appears in the transcript of interview :

"Answer: The name I am (using) now is Li Fu Shan, but previously I was called Li Ah Chung. After coming to Hong Kong, I changed my name to Li Fu Shan from Li Ah Chung by signing a deed poll in 1997. It was because my health had not been too well after coming to Hong Kong and a physiognomist advised me to change my name, so I came up with a new name Li Fu Shan.

Question: When did the name 'Li Fu Shan' come to your mind?

Answer: The name came to my mind around the end of 1996. I easily felt tired and often coughed during the entire year in 1995, so I consulted a physiognomist in the middle of 1996. The physiognomist then advised me that it was better to change my name. So, at the end of 1996, I came up with the name Li Fu Shan.

Question: Had you been using or been called by other, before 1996, the name Li Fu Shan?

Answer: No, definitely not. The name had never came to my mind before.

...

Question: Please tell me about the particulars of your family members, including your parents, brothers and sister, wife and children.

Answer: My father is called Li Wen Biu, and was born on 22 June 1936. My mother is called Luo Yu Wu and was born on 19 January 1942..." [my emphasis]

25)In December 1998, the Director supplied the Mainland Bureau with the information available to him concerning the applicant and requested the Mainland Bureau to conduct an investigation, specifically as to the true identity of the applicant and whether the One Way Permit had been lawfully issued to him.

26)On 21 February 2000, the Mainland Bureau replied to the following effect :

"Investigations have found that in June 1991 Li Ah Chung (formerly known as Li Fu Shan, male, born in Nanan, Fujian on 1st July, 1971) has employed fraudulent and deceptive means, including making changes at the time of his transfer of residence and concealing his adoptive relationship with Li Wen Biu, as adoptive father and adopted son, to deceive the Provincial Public Security Bureau of An Hui into issuing the Permit for Proceeding to Hong Kong and Macau (No. 0282627), with which he migrated to Hong Kong. Would your Department please revoke Li Ah Chung's eligibility to residence in Hong Kong and repatriate him to the Mainland as soon as possible?" [my emphasis]

27)An attachment to that letter went some way to clarifying the Mainland Bureau's findings :

"In August 1988, Li Ah Chung transferred his residence from Fujian Province to Zuzhou City, An Hui Province and submitted to the provincial public security authorities of An Hui Province an application to migrate to Hong Kong to Live on his parents, Li Wen Bui and Luo Yu Wu. In his application for migration to Hong Kong Li Ah Chung concealed his adoptive relationship with Li Wen Biu and misrepresented the year of transfer of residence as 1982 instead of 1988. In June 1991, Li Ah Chung secured, by the aforesaid fraudulent and deceptive means, the Permit for Proceeding to Hong Kong and Macau (No. 0282627) issued by the An Hui Province authorities to migrate to Hong Kong."

28)The Director's investigations led to the decision by him to serve a notice on the applicant pursuant to s.19(1)(b)(ii) of the Ordinance ordering his removal. That, in turn, led to the applicant's appeal to the Immigration Tribunal.

Expert evidence as to Mainland law

29)To assist him in his appeal to the Immigration Tribunal, the applicant obtained an expert opinion on Mainland law from Dr Lin Feng, Associate Director of the Centre for Chinese and Comparative Law at the City University of Hong Kong. The correctness of Dr Lin's opinion - in so far as it goes - has not been disputed.

30)As to the status of adopted children under Mainland law, Dr Lin said that adopted children enjoyed the same status as natural children. More particularly, as to the position before 11 April 1992, when the Adoption Law of the PRC came into effect, he said :

"... the relationship was [at that time] governed by the Marriage Law of the People's Republic of China, which came into effect on 1 January 1981. Article 20 of that Law provides that 'the state protects lawful adoption relationship. The rights and obligations between the adopting parents and an adopted child shall be governed by the relevant provisions concerning the relationship between parents and their natural child. The rights and obligations between the adopted child and his natural parents will come to its end with the establishment of the adoption relationship.' Hence it is clear that under Chinese law, an adopted child has the same status as a natural child.

Though neither the national law nor the interim measures on the administration ot Chinese citizens' entry into and exit from Hong Kong and Macau regions has mentioned whether the term children should also include adopted children, the 1997 Working Rules have mentioned adopted children."

The 1997 Working Rules, of course, came into force, it would appear, some six years after the applicant had received his One Way Permit.

31)Dr Lin concluded :

"Based on the above analysis, it is clear that an adopted child may also apply for a One Way Permit to come to settle in Hong Kong if his adopting parents are Hong Kong residents. He should be treated equally under all relevant Chinese legislation as a natural child of his adopting parents."

32)What Dr Lin did not mention in his opinion was whether, under the One Way Permit scheme, the necessary administrative measures had been put into place (at the time the applicant received his permit) to process persons who were the subject of a 'lawful adoption relationship' as opposed to those who were natural children. I say that because there is other evidence to the effect that, when the applicant applied for his One Way Permit and obtained it, there were no administrative measures in place to enable the Mainland Bureau to process adopted persons.

33)During the course of the hearing, I was referred to a press release dated 28 September 2001 concerning a visit to the Immigration Department by the Director General of the Exit-Entry Administration of the Ministry of Public Security. That release contained the following passage :

" To enable children adopted in the Mainland by Hong Kong residents to lawfully join their adoptive parents in Hong Kong through the One-way Permits Scheme, the Public Security Bureau offices in the Mainland will, with effect from October 1, 2001, start accepting applications from adopted children in the Mainland for entry into Hong Kong to join their adoptive resident parents. The Immigration Department will provide appropriate assistance to the relevant Mainland authorities to verify the immigration status and family details of the adoptive parents so as to ensure that the arrangement will not be abused ..."

The use of the phrase "will, with effect from October 1, 2001, start accepting applications from adopted children" gives the clear impression that prior to 1 October 2001 such applications were not accepted.

34)That this is so (and that the reason is essentially administrative) is supported by a letter from the Mainland Bureau to the Director dated 14 September 2000. In that letter the equal legal status of adopted children is acknowledged by the Mainland Bureau which, however, goes on to qualify that recognition, by saying :

"... the Exit and Entry Inspection Departments under the Public Security organs on the Mainland are now closely studying and devising the implementation procedures for handling and approving applications submitted by adopted children for settlement in Hong Kong. Before any measures are implemented, no approval will be given for such application for proceeding to Hong Kong for settlement."

35)Again, the clear impression is given that by September 2000, the date of the Mainland Bureau's letter, no administrative measures had been implemented to enable lawfully adopted children to enjoy the same measure of benefits under the One Way Permit scheme as natural children.

36)The benefits given to adopted children under substantive law are fundamental. But it is asserted in the Mainland Bureau's correspondence that within its jurisdiction the need for procedural rules or administrative measures is necessary to give effect to those benefits. Speaking generally, it is self-evident that many factual issues may arise in adoption applications that may only accurately and fairly be determined by adherence to a common set of procedural rules or administrative measures. For example, what is to be considered a lawful adoption relationship as opposed to one that is not recognized by law and is therefore not recognized for the purposes of the scheme? What matters must be demonstrated to prove a lawful adoption? Or to put it another way, how are the authorities to ensure that the scheme in respect of adopted persons is not abused?

37)As to any requirement to reside in a province for a minimum period of time before making an application for a One Way Permit under the scheme, Dr Lin was of the opinion that there was (and is) no such requirement. He said :

"In no relevant legislation does there exist any requirement as to the length of stay of the applicant at the place of residence in order for him to apply for One Way Permit. In conclusion, my advice is that there is no such condition in national legislation as to the period of stay at the place of residence in order for the applicant to apply for a One Way Permit in that Province. Even if there is such a condition contained in local, e.g., provincial, regulation, such a condition is null and void due to its contradiction with relevant national legislation."

38)While that may be the position in substantive law, it does not, of course, prevent the Mainland Bureau from insisting on the presentation of correct factual data in order to ascertain whether a person is or is not entitled to the issue of a One Way Permit under the scheme. I think it is self-evident that there may be a number of reasons why an applicant should have to state details of where he lives and how long he has lived there.

Information obtained during the adjournment

39)The introduction of Dr Lin's opinion resulted in an adjournment of the Immigration Tribunal hearing. The purpose of the adjournment was to enable the Director to obtain more information from the Mainland Bureau. On 28 August 2000, the Director put the following questions to the Mainland Bureau :

"(1) Are adopted children on the Mainland also eligible to apply for a Permit for Proceeding to Hong Kong and Macau to settle in Hong Kong to live off their adoptive parents?

(2) If adopted children are also eligible to apply for a Permit for Proceeding to Hong Kong and Macau to settle in Hong Kong, are they required to state their status as adopted children in their applications? Otherwise, would their application be deemed invalid because (they) had concealed the truth?

(3) In respect of Li Fu Shan's case, your Bureau has confirmed that his Permit for Proceeding to Hong Kong and Macau was obtained by fraud and deception, has his Permit for Proceeding to Hong Kong and Macau been invalidated?"

40)The Mainland Bureau replied by letter dated 14 September. In that letter the equal status in law of adopted and natural children was recognized but, as earlier stated, this was qualified by the assertion that, as yet, no administrative measures had been put into place to process adopted children under the scheme and that until such measures were in place no approval would be given to persons who were adopted. The letter continued :

"According to Paragraph 3, Article 13 of the Interim Measures for the Control of Chinese Citizens Travelling on Private Business to or from the Regions of Hong Kong and Macau, no approval will be granted to Mainland citizens' applications for travelling to Hong Kong and Macau where circumstances involving 'fabrications of facts, providing false certification or deceiving the Exit and Entry Management Departments under the Public Security Organs' are found. Therefore, the information provided by mainland citizens in their applications for settlement in Hong Kong must be true and correct. When Li Ah Chung (originally named Li Fu Shan) submitted his application for settling in Hong Kong, he deceived the Public Security Organ by concealing his genuine relationship with Li Wen Biu and by altering the time he changed his registered permanent residence. As such, his application for settling in Hong Kong should be deemed invalid."

41)While this (and its earlier letter) made it clear that the Mainland Bureau had reached its findings in recognition of the substantive law concerning adopted children, what was not demonstrated in the letters was how it was that the Mainland Bureau had reached those findings. No copy documents were supplied nor was any analysis given of the basis for the Mainland Bureau's findings.

42)The Director was alive to this omission. A letter dated 27 September 2000 was sent to the Bureau which said :

"It will facilitate the handling of this appeal case and avoid any unnecessary disputes if 'substantial evidence' to prove Li Fu Shan's deceitful conduct can also be provided to the Immigration Tribunal. Under such circumstances, we hope that you can assist us further by replying to the following question : -

(1) Did Li Fu Shan report his relationship with Li Wen Biu in his application for a Permit for Proceeding to Hong Kong and Macau? If yes, what relationship did he report?

(2) In your letter dated 21 February, you stated that Li Fu Shan's Permit for Proceeding to Hong Kong and Macau was obtained by fraud and deception. I should be grateful if you would specify in detail how he concealed his relationship with Li Wen Biu by fraud and deception in order to achieve his goal."

43)The reply from the Mainland Bureau did little to advance matters. In that reply (dated 24 November 2000) the Mainland Bureau simply re-stated its findings, declining to supply details of the evidence upon which those findings had been reached. The letter said :

"In his application for settling in Hong Kong, Li Ah Chung (originally named Li Fu Shan) reported his relationship with Li Wen Biu as father and son and concealed his genuine relationship with Li Wen Biu as adoptive father and adopted son. Moreover, he altered the date he changed his registered permanent residence from the year 1986 to the year 1982. By doing so, he succeeded by fraud in obtaining from the An Hui Province a Permit for Proceeding to Hong Kong and Macau No. 0282627 to settle in Hong Kong."

44)In the result, therefore, while the Immigration Tribunal had before it correspondence from the Mainland Bureau stating in unequivocal terms that the applicant had obtained his One Way Permit by fraudulent means and that his permit had as a result been cancelled, it had no evidence before it to demonstrate how it was that the Mainland Bureau had reached its findings.

The decision of the Immigration Tribunal

45)When the Immigration Tribunal came to make its decision, it had before it the relevant correspondence with the Mainland Bureau and the record of interview in which the applicant had lied in an attempt to conceal his adopted relationship with his parents in Hong Kong.

46During the later stages of the investigation by the Immigration Department, the applicant had declined to answer questions under caution. At the Tribunal hearing itself, the applicant further declined to give evidence. The Tribunal, therefore, had nothing from the mouth of the applicant to explain how he had come to obtain his One Way Permit in An Hui Province and why he had lied about his adopted relationship with his parents in Hong Kong. In short, there was no evidence to qualify or contradict the unequivocal assertion of the Mainland Bureau that the applicant had used fraudulent means to obtain his permit.

47)In its decision, having set out relevant background, the Tribunal said :

"On 18th June 1998, the Immigration Department received the Appellant's application for verification of eligibility for permanent identity card by virtue of seven years residence in Hong Kong. Record check revealed that there were three anonymous letters received in 1991 alleging that the Appellant had assumed the identity of Li Ah-chung to come to Hong Kong on One-way Chinese Exit Permit for settlement. His true name should be Li Fu-shan. Mr. Li was caused to attend the Immigration Department on 5th December 1998. During enquiries, he denied the allegation.

On 21st February 2000, the Mainland authorities confirmed that the Appellant had obtained a One-way Chinese Exit Permit for settlement in Hong Kong in name of Li Au-chung by fraudulent means. The Appellant's application for verification of eligibility for permanent identity card was therefore refused on 22nd May 2000."

The Tribunal continued :

"By reading the letters by the Mainland authorities ... the Tribunal has reasonable grounds to believe that the subject One Way Chinese Exit Permit has been obtained by the Appellant unlawfully and by fraud.

The Appellant did not give evidence. His counsel relied on an undated Legal Opinion on Chinese law prepared by Dr Lin Feng that suggests that under Chinese law, an adopted child has the same status as a natural child. Counsel for the Appellant argued that the Appellant is the adopted son of Li Wen Biu. He argued that it was misunderstanding by the Appellant and not fraud when the Appellant applied for the One Way Chinese Exit Permit in China, he put down that he was the 'son' of Li Wen Biu. The reason is, according to Mr Poon, that an adopted son has the same status as a natural child.

We do not accept the argument. Although it may be correct that under Chinese law an adopted child has the same status as a natural child, the question is whether it appears to the Director of Immigration that the Appellant has landed in Hong Kong unlawfully. Alternatively, whether the Appellant has obtained the One Way Chinese Exit Permit by fraud and unlawfully.

From the written evidence before us, in particular, the letters by the mainland authorities, we have reasonable ground to believe that the Appellant did obtain the One Way Chinese Exit Permit by fraud and unlawfully."

First challenge : failure to give adequate reasons

48)It is not disputed that the Immigration Tribunal is obliged to give reasons in support of its decision. See, for example, Immigration Tribunal v. Lau Tak Pui and Others [1992] 1 HKLR 374 in which Kempster JA said (at 380) :

"... I am satisfied that the Hong Kong Immigration Tribunal was and is a fully judicial and non-domestic body when hearing such appeals as those of Lau Tak-pui, Lau Tak-mui and Yam Lai-san, that there was and is no right of appeal from its decisions and that, as Mr McCoy on their behalf has emphasised, it exercises powers affecting the liberty and residential and citizenship rights of appellants pursuant to statutory provisions of some complexity. These are special circumstances which, quite apart from any implication to be derived from the wording of s. 53D, as to which I express no opinion, require as a matter of fairness the provision of outline reasons showing to what issues the Tribunal has directed its mind and the evidence upon which it has based its conclusions." [my emphasis]

49)The Immigration Tribunal is required therefore to give 'outline reasons' not exhaustive reasons. The phrase 'outline reasons' is taken from the judgment of Lord Donaldson MR in R v. Civil Service Appeal Board [1991] 4 All ER 310 (at 319) in which the Master of the Rolls said that, in respect of an industrial tribunal which was a 'fully judicial body', natural justice required it to give :

"outline reasons sufficient to show to what they were directing their mind and thereby indirectly to show not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree." [my emphasis]

50)McCowan J agreed (at 323), saying :

"... I see no reason why the board need take more than a few simple sentences to state those reasons."

51)The reasons of the Tribunal must, of course, be based on evidence that has some probative value. As Jones J said in Chan Choi Hung v. Immigration Tribunal [1993] 1 HKL 422 (following Mahon v. Air New Zealand [1984] 1 AC 808) :

"The first rule of natural justice was that the person making a finding in the exercise of an investigative jurisdiction must base his decision upon evidence that had some probative value, which tended logically to show the existence of facts consistent with the finding, and that the reasoning supportive of the finding, if it be disclosed, was not logically self-contradictory."

52)Applying these principles, I am satisfied that the reasons given by the Immigration Tribunal meet the minimum requirement :

(i) the Tribunal accepted the unequivocal statements made by the Mainland Bureau in their letters that the applicant had obtained his One Way Permit 'unlawfully and by fraud';

(ii) in support of this, the Tribunal accepted the other 'written evidence' which would have included the transcript of the applicant's interview in which he effectively denied his adoptive relationship with his Hong Kong parents;

(iii) against that the Tribunal took into account that the applicant himself had chosen not to give evidence to explain his side of the story;

(iv) the Tribunal took into account the expert opinion of Dr Lin, accepting its accuracy as to the status of adopted children under Mainland law;

(v) however, in the view of the Tribunal, that did not prevent the applicant from acting in such a manner concerning the facts of his own case so as to obtain his permit by the use of fraud.

53)In my judgment those reasons, taken together, constitute a concise statement of the means by which the Tribunal reached its decision. As 'outline reasons' they are plainly sufficient. They encompass the relevant issues. They state what evidence is accepted and what is accepted but qualified. They state by logical progression how the decision has been arrived at. The reasons given are therefore adequate. Whether they are correct in law or whether they reflect a decision that is reasonable in the 'Wednesbury' sense (see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] 2 All ER 458) are different matters.

Second challenge : failure to apply the correct burden and standard of proof

54)The Immigration Tribunal did not specifically direct itself as to the burden and standard of proof. There is no duty on an administrative tribunal to do so in each and every case. It is only obliged to do so when fairness dictates such a course.

55)The proceedings before the Immigration Tribunal were conducted in Cantonese. A digest of those proceedings prepared by an immigration officer indicates that counsel for the Director submitted to the Tribunal that the burden lay on the Director to prove that the One Way Permit, originally accepted as valid, had been obtained unlawfully. In addition, it was incumbent upon the Director to prove that fact to a standard which was 'slightly higher than the civil standard' due to the serious consequence that would be visited upon the applicant. Those submissions were made without dissent from counsel then appearing for the applicant.

56)While ordinarily in such circumstances it may be taken that the Immigration Tribunal directed itself in accordance with those uncontested submissions, Mr Pun, for the applicant, has argued that no such assumption can be made in the present case. In this regard he has referred to the following words of the Tribunal contained in its decision :

"Although it may be correct that under Chinese law an adopted child has the same status as a natural child, the question is whether it appears to the Director of Immigration that the Appellant has landed in Hong Kong unlawfully. Alternatively, whether the Appellant has obtained the One Way Chinese Exit Permit by fraud and unlawfully."

57)This direction, however, albeit ambiguous, focuses on the issue or issues to be determined by the Immigration Tribunal rather than the burden and standard of proof.

58)When a removal order has been made, the Tribunal, as a creature of statute, is bound to determine any appeal in accordance with the requirements of s.53D(1) of the Ordinance :

"(1) 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) ...

(ib) ...

(i) ...

(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."

59)On a plain reading of s.53D(1), I am satisfied that in every case where a removal order has been made by the Director the Immigration Tribunal is obliged to make an independent assessment of the facts in order to determine whether the appellant does or does not have the permission of the Director to remain in Hong Kong. I do not see how the words "where the Tribunal determines that on the facts of the case as it finds them the appellant does not ... have the permission of the Director of Immigration to remain in Hong Kong it shall dismiss the appeal; and in any other case ... it shall allow the appeal" can be read in any other way. Clearly, in coming to an independent assessment of that issue, the fact that the Director has made and served an order of removal (which itself has led to the appeal) is irrelevant.

60)As I have said, the issue to be determined by the Immigration Tribunal is whether the appellant has the permission of the Director to remain in Hong Kong. In a case where the Director has originally granted permission but has later removed that permission, the Tribunal is obliged therefore to determine, on the facts of the case as it finds them, whether the Director was entitled to set aside the permission originally given.

61)In the present case, the Director having originally granted permission to the applicant to remain in Hong Kong and then having set aside that decision, it falls for the Immigration Tribunal to consider the basis upon which the Director set aside his earlier permission. If, on the facts of the matter as it finds them, the Tribunal determines that the applicant did obtain his One Way Permit unlawfully then it is bound to dismiss the appeal on the basis that the applicant does not have (and never did have) the permission of the Director to remain in Hong Kong. If it determines to the contrary then it is bound to allow the appeal on the basis that, notwithstanding the making of the removal order, the applicant has always had the permission of the Director to remain in Hong Kong.

62)On this basis, referring to the passage in the Tribunal's decision criticised by Mr Pun, I have some difficulty in understanding what it was exactly that the Tribunal understood it was obliged to determine. The Tribunal at first said that the question to be decided "is whether it appears to the Director of Immigration that the Appellant has landed in Hong Kong unlawfully." But in posing that question, the Tribunal was confusing its role with that of the Director. In terms of s.19(1)(b)(ii) of the Ordinance (cited in para.4 supra) the Director may make a removal order if it appears to him that a person has landed unlawfully. That is his prerogative. It is not, however, for the Immigration Tribunal to determine whether it did in fact appear to the Director that the applicant had landed unlawfully. Rather, it is for the Tribunal to determine whether the applicant did land unlawfully and whether, as a result the Director was entitled to withdraw his permission for the applicant to remain in Hong Kong. After posing the first question , the Tribunal then went on to ask itself a question in the alternative, one which, in my view, more accurately goes to the root matter for its determination; namely, "whether the Appellant has obtained the One Way Chinese Exit Permit by fraud and unlawfully."

63)There is therefore on the face of its decision some confusion as to exactly what it was that the Immigration Tribunal believed it was required to determine. But, having posed the two alternative questions, the Tribunal then proceeded to supply an answer and it is in that answer, I believe, that the confusion is resolved. The Tribunal gave its answer in the following terms :

"From the written evidence before us, in particular, the letters by the mainland authorities, we have reasonable grounds to believe that the Appellant did obtain the One Way Chinese Exit Permit by fraud and unlawfully."

64)In my view, that answer can only be read in one way; that, on the facts of the case as it found them, the Immigration Tribunal was satisfied that the applicant did obtain his One Way Permit unlawfully and did not, therefore, at any time have the permission of the Director to remain in Hong Kong. That finding goes directly to what I have described as the root matter for determination.

65)The Immigration Tribunal, of course, said that it had ' reasonable grounds to believe' that the applicant obtained his permit unlawfully. But, on an ordinary reading, to say that it had reasonable grounds to believe must, in my view, be the same as saying that it was satisfied. On a strict construction, it may be arguable that the Tribunal may have meant something else. But this Court, in exercising its supervisory jurisdiction, should not expect administrative tribunals to use the same accuracy of legal terminology expected of lawyers. As Lord Browne-Wilkinson commented in R v. Bishop Challoner School, ex parte Choudhury [1992] 2 AC 182 :

"It is essential that in exercising the very important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists when there has in fact been an error of law. Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt."

66)During the course of submissions, emphasis was laid on the fact that on two occasions the Immigration Tribunal used the phrase to which I have made reference; namely, that it had 'reasonable grounds to believe'. It was suggested that the phrase was drawn from the dicta of Keith J (as he then was) in his judgment in Kong Sau Mei and Others v. Director of Immigration [1999] 1 HKL 174. In that judgment, Keith J was looking to the powers of the Director under s.19(1)(3) not to the powers of the Immigration Tribunal. With this important distinction in mind, his words (at 178) should be cited :

"The inescapable fact is that s 19(1)(b) of the Ordinance gives the Deputy Director of Immigration the power to make removal orders 'if it appears to him' that certain events have taken place ... It follows that the existence of the Deputy Director of Immigration's power is not dependent on whether the events have in fact taken place. The existence of his power is dependent on whether it appears to him that the events have taken place. However, I do not believe that the legislation would have entrusted so important a decision to the Deputy Director of Immigration without ensuring that he did not act on a whim or caprice or on inadequate grounds. Accordingly, his power under s 19(1)(b) must be constructed as being subject to the implied limitation that it may only be exercised if his belief that the event have taken place is based on reasonable grounds."

67)When Keith J spoke of the Director being able to exercise his powers under the section only if he had 'reasonable grounds' to support his belief, he was speaking of 'reasonable grounds' in the public law sense; namely, that he may not make a decision which abuses his power. See, for example, R v. Secretary of State for the Environment, ex parte Nottinghamshine County Council [1986] AC 240, per Lord Scarman (at 299) :

"The ground upon which the courts will review the exercise of an administrative discretion by a public officer is abuse of power. Power can be abused in a number of ways: by a mistake of law in misconstruing the limits imposed by statute (or by common law in the case of a common law power) upon the scope of the power; by procedural irregularity; by unreasonableness in the Wednesbury sense; or by bad faith or an improper motive in its exercise."

68)If the Immigration Tribunal has employed the phrase 'reasonable grounds' in the sense meant by Keith J then it has misdirected itself. But there is no evidence that it do so. To repeat, I am satisfied that, in using the phrase, the Tribunal meant no more than it was satisfied.

69)Accordingly, in my judgment, the passage in the Tribunal's decision much criticised by Mr Pun as being 'utterly wrong' does not, when read in context, reveal an error of law either as to the correct issue to be determined or the correct burden and standard of proof.

70)As to the burden of proof ,in Cheung Cheong v. Attorney General [1987] HKLR 356 at 360 and Lau Tak Pui v. Immigration Tribunal [1992] 1 HKLR 374 at 386-7 the Court of Appeal held that in appeals to the Tribunal the burden of proof lies on an appellant. That is in accordance with the clear wording of s.64 of the Ordinance which, in respect of a list of specific claims that may be made by appellants, directs that the onus of proving those claims shall lie on them. However, s.64 does not make reference to cases such as the present where the Director has originally granted permission on the basis of a document accepted as being lawfully obtained but has later withdrawn that permission on the basis that it appears to him that the document was unlawfully obtained. Kaplan J (as he then was), faced with the same point in In re Chen Huang Qiong [1994] 2 HKLR 394, said (at 397) :

"... s. 64 of the Immigration Ordinance has no application to the present case where there is no doubt that the Director did give permission to remain, and thus it was incumbent upon him to show that permission was only granted because a false travel document had been submitted. He made such allegation and thus he has to prove it."

71)That in my view, must be correct. It follows the ancient rule : proof rests on he who affirms not on he who denies.

72)Mr Marshall submitted that, in the present case, the legal burden of proof at all times rested on the applicant, only the evidential burden shifted. That may or may not be correct. But there is no need for me to decide the issue. At the appeal hearing, counsel for the Director submitted that the burden lay on the Director to prove that the One Way Permit had been obtained unlawfully. That submission was not opposed. Accordingly, it must be taken that the tribunal acted on that submission. In my opinion, where the onus lay on that central issue was therefore correctly identified. Whether it was a legal or evidential onus is a matter of academic interest only.

73)As to the standard of proof, Mr Pun submitted that the Immigration Tribunal was wrongly advised by counsel and in that regard must be taken as having fallen into error. Mr Pun has accepted that, as a general rule, the person who carries the burden of proof is able to discharge it on the balance of probabilities : the civil standard. However, in the present case, he has argued, the standard of proof required of the Director was higher. What was required to be demonstrated by the Director was proof to a high degree of probability approximating to the criminal standard of proof beyond a reasonable doubt.

74)Mr Pun based his contention on the fact that, having been allowed to enter Hong Kong and remain here, enjoying the rights of a Hong Kong resident guaranteed under the Basic Law, the applicant had more to lose than a person who has, before entry, been refused leave to enter. In support, he cited Neill LJ in R v. Immigration Officer, ex parte Chan [1992] 1 WLR 541 (at 551) :

"It is right to remember that a person who has entered with leave is in a stronger position with regard to the burden of proof than the person who was appealing against the refusal by an Immigration Officer of leave to enter."

75)But what Mr Pun was unable to avoid was the fact that, if the Director was correct, the applicant had never been lawfully in Hong Kong and therefore had never lawfully been entitled to enjoy those rights. If the Director was correct, the applicant's One Way Permit had always been a nullity. That being the case, the question may be asked : why should the applicant, having gained entry by fraud, be in a better position than a person who has been refused entry? In my view, he should enjoy no greater status. In this regard, see, for example, R v. Secretary of State for the Home Department, ex parte D.G. Patel [1986] Imm A.R. 208 (at 218) per Webster J.

76)If it was conceded that the applicant had at one time been lawfully resident in Hong Kong there would be more substance in Mr Pun's argument, although I make no finding on the issue. But in the present case there was no such concession. The standard of proof required of the Director was therefore that he demonstrate on a balance of probabilities that the applicant's One Way Permit had been obtained unlawfully and therefore had always been a nullity. That, as it transpires, is a lower standard than the Tribunal was advised to adopt.

Third challenge : the finding of the Tribunal was 'Wednesbury' unreasonable

77)Under this ground of challenge, Mr Pun argued that the only evidence upon which the Immigration Tribunal could find that the applicant's One Way Permit had been unlawfully obtained was contained in the letters from the Mainland Bureau. But the letters from the Mainland Bureau contained no evidence, he said, they contained assertions only. There were, therefore, no facts upon which the Tribunal could make its determination. As such, its findings were irrational in the 'Wednesbury' sense or a breach of natural justice in that the findings were not based on any probative evidence.

78)But, in my judgment, it is not accurate to say that the letters from the Mainland Bureau contained no evidence. Those letters contained evidence of certain facts; more particularly

(a) that the authority responsible for managing the One Way Permit Scheme and issuing the permits had investigated the matter;

(b) that it had made a finding that the applicant's permit had been obtained by fraud;

(c) that it had specified the matters in respect of which the fraud had been exercised;

(d) that it had sought the cancellation of the applicant's permit and his return.

79)That being so, in my view, it was a matter for the tribunal whether it was or was not prepared to accept those facts. It is apparent from the Tribunal's decision that those facts were considered within the context of the expert opinion provided by Dr Lin and were accepted by the Tribunal. I can find nothing irrational in that. Nor, in my opinion, can it be said that the letters do not contain evidence of some probative value.

80)In Tsui Siu Wai v. Director of Immigration (unreported) MP 1665/1994, Patrick Chan J (as he then was), in considering similar circumstances, said :

"... the Director of Immigration was not concerned with how the Chinese Bureau came to their determination. He was not making any determination on the validity of the applicant's exit permit on behalf of the Chinese authority or in place of their determination. He came to the conclusion or 'determination' that the applicant's exit permit was not lawfully issued from the investigations made by the Department and the confirmation from the Chinese Bureau."

81)I believe that it may equally be said that the Immigration Tribunal did not have to concern itself with how the Mainland Bureau came to its finding provided it was prepared to accept the fact of that finding.

82)Mr Pun contended that foreign law must be proved as a fact, the suggestion being that the burden was therefore on the Director to prove as a fact that, according to Mainland law, the applicant had obtained his permit unlawfully, that proof requiring substantive evidence of the applicant's alleged fraud. As a principle of law it is true that foreign law must be proved in our courts. But the Immigration Tribunal sits as an administrative tribunal and is therefore not subject to the technical rules applicable in civil or criminal litigation. What must also be remembered is that evidence of the substantive law was before the Tribunal in the form of Dr Lin's opinion. What the Mainland Bureau spoke of were the actions of the applicant in terms of which, by fraudulent means (but within the context of the substantive law) he obtained his permit.

Fourth challenge :the facts relied upon by the Tribunal were not material

83)Assuming the Immigration Tribunal was entitled to rely on the assertions of fact made by the Mainland Bureau, Mr Pun contended that those facts were in any event not material. They were not material in the sense that they were not capable of vitiating the lawful issue of the permit to the applicant.

84)I can find nothing in this ground. It was for the Mainland Bureau, to authority responsible for the issue of the applicant's permit, to determine whether or not the misrepresentations were material. As I have said earlier (para.36), the Mainland Bureau is entitled to insist on administrative procedures, including receipt of accurate information, to ensure that the scheme managed by it is not abused.

85)As to the misrepresentations themselves, the Mainland Bureau found as a fact that the applicant had intentionally concealed from it that he was an adopted child at a time where there were no administrative procedures yet in place to process adopted children under the scheme. That was manifestly material, so much so that it would (at that time) have excluded the applicant from the scheme. That alone undermines Mr Pun's submission that the misrepresentations were not capable of vitiating the lawful issue of the applicant's permit.

Conclusion

86)For the reasons given in the body of this judgment I am satisfied that the application for judicial review must be dismissed.

87)There will be an order nisi awarding costs to the 1st respondent. That order will be made final 30 days after the handing down of this judgment unless application is made within that time to argue the matter.

Representation:

Mr Hectar Pun, instructed by Messrs S.Y. Chu & Co., for the Appellant

Mr William Marshall, SC leading Ms Michelle Chan, GC of Department of Justice, for the 1st Respondent

2nd Respondent in person, absent