Re Hui Lai Nga

HCMP002007/1984

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Coram: Hon. Mantell J.

Date of Hearing: 10 August 1984

Date of Delivery of Judgment: 10 August 1984

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JUDGMENT

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1. On 23rd July, I gave the applicants leave to apply for Judicial Review under 0.53 of the Rules of the Supreme Court. Today, I have been concerned with the applications which are to remove into the High Court and quash removal orders made by the Director of Immigration in relation to each of the applicants on 11th July 1984 and for an order quashing the decision. of the Immigration Tribunal given on 13th July 1984 dismissing the appeals from those orders.

2. The applicants are sisters of 18 and their brother of 15. The sisters are Miss Hui Lai Nga and Miss Hui Nga Lai and the brother is Hui Ching Chun. They came to Hong Kong from China on 28th January 1984 and they were entitled to stay until 11th April 1984. That is not contested. That date came and went and they did not go back. Their mother, who came with them and who had given an undertaking that the whole party would return, did go back on 10th April. The three children stayed behind. They have relatives here in Hong Kong and by reason of their over-staying, they were, of course, in breach of the condition of stay and it was on that basis that the Director of Immigration made a removal order in each case. They appealed under section 53(A) of the Immigration Ordinance as they were entitled to and the Tribunal, having examined their written grounds of appeal, dismissed the appeal without a hearing. The grounds of the appeal to me, and upon which I gave leave for the application to be made, are that the Tribunal was in error by dismissing the appeal without hearing argument firstly in that the applicants were entitled to remain in Hong Kong under section 8(1)(a) of the Immigration Ordinance; secondly, in that they were not right to dismiss the appeal without giving the applicants an opportunity to establish their entitlement by virtue of their grandmother's qualifying connection with Hong Kong under the British Nationality Act; thirdly and fourthly, which I think are grounds which run together, in that the Tribunal was wrong not to give an opportunity for matters to be advanced of a general nature relating to family circumstances and which have been called "humanitarian" grounds. In putting forward these last grounds, the applicants or their advisers had in mind in particular the decision of the Privy Council in the Attorney General of Hong Kong v. Ng Yuen shiu.⁽¹⁾

3. Mr. Persuade who appears for the applicants has conceded that upon examination of the relevant sections, there is no basis upon which it can be said that these applicants were Hong Kong belongers entitled to stay in Hong Kong and that the only matter which he can continue to argue is that there was never given to these applicants any opportunity to present their case on humanitarian grounds. Well, I have had my intention invited to section 53 of the Ordinance, and it does not appear to me that the Tribunal was ever entitled to entertain such grounds though Mr. Persaud tells me, and I accept, that as a matter of practice they do sometimes invite applicants or their legal representatives to address them on such matters. Section 53 (D) which deals with the hearing of the appeal seems to me to be entirely clear in its terms. It provides for the two cases which would entitle the applicants to remain and provides further that if it is found that the applicants are not within one or other of those cases, the Tribunal shall dismiss   the appeal. The section is mandatory. Furthermore, the decision shall be final. Further still, it does not appear to me that under section 53(A), general grounds affecting the exercise of discretion, should it exist, can be relied upon. I find, therefore, that so far as the Tribunal is concerned, there has been no error and no departure from the procedure which is clearly provided for in the Ordinance.

4. I have had a little more trouble with regard to the application to quash the removal order itself. I ought to interpose that the application is for the execution of the order to be prohibited but I think. following the Attorney General of Hong Kong v Ng Yuer Shiu,⁽¹⁾ the more appropriate course would be to apply to quash. The fact however that the application is not in the appropriate form would not, of course, prevent it from succeeding. The removal order was made under section 19 of the Ordinance which section then sets out the circumstances in which such removal order might be made and it is suggested that the terms are such as to confer a wide discretion upon the Director. Indeed, I believe it might, but it does not, so it seems to me, impose upon the Director any obligation at that stage to entertain matters of the general nature put forward here. I think if that were a requirement, the whole procedure envisaged by this Ordinance would become completely unworkable. Nor do I think that the applicants in this case can derive any assistance from the decision of the Privy Council in Ng Yuen Shiu's case which turned upon very special facts: there, it will be remembered, the government had given an undertaking to entertain representations if persons came forward as being legal immigrants and it was upon the question of legitimate expectation that the decision both in the Court of Appeal here in Hong Kong and the Privy Council turned, and I do not think that any particular assistance is to be derived from that case.

5. Well, these cases are always very sad and it is only with reluctance that one would confirm such an order if one thought there was any merit at all in the application. But in this case, I am afraid, I can find none. The applications stand dismissed.

(1) [1983] All E.R. 346

Representation:

Norman Persaud instructed by Wing-Sum Lo & Co. for Applicant.

Peter Graham, Crown Counsel for Respondent.