So Kam Cheung and Others v. Director of Immigration

HCMP000070A/1993

1992, MP4151

1993, MP70

1993, MP564

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H E A D N O T E

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Applications by the Attorney General to set aside leave granted for judicial review on the grounds that the Director of Immigration had not taken into account strong humanitarian considerations in respect of three illegal immigrants when exercising his discretion under ss.11(5A)(c) and 13 of the Immigration Ordinance to return those illegal immigrants to China.

Having regard to the decisions of the Court of Appeal in Ho Ming Sai and Others v. Director of Immigration Civil Appeal No.162/1992 (unreported) and Chan Heung Mui and Others v. Director of Immigration Civil Appeal No.168/1992 (unreported), the issue of unreasonableness except for one ground had been held to be unarguable. For the remaining ground, the court agreed with two previous decisions at first instance, Yu Tai Yee and Others v. Director of Immigration, MP2082/1993 (unreported) and Chan Kong Tit and Others v. Director of Immigration, MP2526/1993 (unreported), that this ground was also unarguable.

It was held that the discretion of the Director of Immigration is unfettered unless he exercises his discretion contrary to the principles laid down in Associated Provincial Picture Houses Ltd. v. Wedneshury Corporation [1948]1 KB 223 when strong humanitarian considerations had been advanced.

In the circumstances, the leave for judicial review in each case was set aside.

Endorsement was however given by the court to a suggestion by Godfrey J. in Ho Ming Sai's case that the Immigration Ordinance should be amended to include a provision for an appeal from a removal order by an illegal immigrant to the Governor in Council when strong humanitarian grounds had been rejected.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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1992, No. MP4151

IN THE MATTER of an application for Judicial Review

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AND

1993, No. MP70

IN THE MATTER of an application for Judicial Review

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AND

1993, No. MP564

IN THE MATTER of an application for Judicial Review

Coram: Hon Jones J. in Chambers

Date of hearing: 22 November 1993

Date of delivery of judgment in court: 6 December 1993

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J U D G M E N T

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1. On the 22nd June 1993 I gave judgment on a preliminary issue that the Bill of Rights Ordinance does not apply to the present applications for judicial review. The remainder of the application which is based upon Wednesbury unreasonableness was adjourned pending my decision. Since I delivered judgment, the applicants' legal aid certificates have been discharged so that one applicant in each case appeared before me in person on behalf of all the other applicants in their respective cases upon the hearing of the summonses issued by the Attorney General to set aside the leave granted for judicial review on the remaining grounds. Following the submission of Mr Marshall, Q.C. who appeared for the Attorney General, Mr Wong Chung Hing, the 7th applicant in MP4151/92, the husband of Madam Cheng, the 6th applicant who is the illegal immigrant in this case, Mr So Kam Cheung, the 1st applicant in MP70/93, the father of the illegal immigrant So Hoi Ling, the 3rd applicant, and Madam Chiu Chun Chi, the 2nd applicant in MP564/93, the mother of Lau Sin Ting, the 3rd applicant who is required to return to China after the expiry of her stay here as a visitor, reiterated the humanitarian grounds that had been presented to the Director of Immigration for consideration.

2. In respect of MP 4151/1992 and MP 70/1993, the Director of Immigration has refused to exercise his discretion under s.13 of the Immigration Ordinance which provides :

"13. Authority for illegal immigrant to remain

The Director may at any time authorize a person who landed in Hong Kong unlawfully to remain in Hong Kong, subject to such conditions of stay as he thinks fit, whether or not he has been convicted of that offence, ..."

As the 3rd applicant in MP 564/1993 has the right to remain in Hong Kong as a visitor under a two-way permit, the discretion to refuse her right to remain was exercised under s.11(5A)(c) of the Immigration Ordinance which reads as follows :

"11. Permission to land and conditions of stay

(5A) An immigration officer or a chief immigration assistant may at any time by notice in writing to any person other than a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 8(1)-

.......

(c) vary any limit of stay in force in respect of such person by enlarging the period during which such person may remain in Hong Kong."

3. The test to determine whether an application for leave for judicial review should be granted was referred to by Kempster J.A. in Ho Ming Sai & Others v. Director of Immigration Civil Appeal No.162/1992 (unreported), where at pp.3 and 4 he said :

"... whether the material ... disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief claimed. Put another way by Lord Donaldson M.R. in R. v. Civil Service Appeal Board [1991]4 All ER 310 at p 315:

"... leave will only be granted if the applicant makes out a prima facie case that something has gone wrong of a nature and extent which might call for the exercise of the judicial review jurisdiction."

Lord Donaldson earlier in his judgment on the same page said:

"Those of us with experience of judicial review are very much aware that the scope of the authority of decision-makers can vary very widely and so long as that authority is not exceeded it is not for the courts to intervene. They and not the courts are the decision-makers in terms of policy. They and not the courts are the judges in the case of judicial or quasi-judicial decisions which are lawful. The public law jurisdiction of the courts is supervisory and not appellate in character."

4. I shall now set out brief details of the facts in the three cases.

5. In MP 4151/1992 Madam Cheng married Mr Wong Chun Hing who is a Hong Kong resident in China in January 1986. Madam Cheng first entered Hong Kong illegally on the 25th June 1985 and was repatriated to China on the 8th December 1985. She entered Hong Kong again illegally for the second time from China on the 18th December 1985. During her stay in Hong Kong, Madam Cheng gave birth to the first child of the marriage the 1st applicant Wong King Lung on the 22nd March 1986 and he was allowed to remain in Hong Kong having regard to his father's status. Madam Cheng however was repatriated to China on the 24th July 1986 after having been sentenced to three months imprisonment suspended for 12 months for the offence of remaining in Hong Kong without permission. Madam Cheng entered Hong Kong again illegally for the third time from China on the 2nd July 1987 and has lived in Hong Kong continuously since that time. The other children of the marriage who were all born in Hong Kong are the 2nd applicant Wong May Yee who was born on the 5th September 1987, the 3rd applicant Wong Wing Lung, born on the 3rd February 1989, the 4th applicant Wong Pui Yee, born on the 29th December 1990 and the 5th applicant Wong Mei Kei, born on the 23rd August 1992. A removal order was made against Madam Cheng on the 30th April 1991. An appeal against this decision was dismissed by the Immigration Tribunal on the 14th May 1991. A petition to the Governor was dismissed on the 22nd July 1991. After a subsequent review of the papers by the Director of Immigration, the previous decision to remove Madam Cheng from Hong Kong was maintained on the 20th May 1992. A further application was rejected on the 28th July 1992 following the submission of a letter from the Social Welfare Department and a psychologist's report.

6. In his evidence Mr John Yeung, the Deputy Director of Immigration stated that he had considered the strong humanitarian grounds or circumstances put forward by Madam Cheng but refused to exercise his discretion in her favour.

7. In MP 70/1993 the 1st and 2nd applicants were married in Hong Kong on the 10th March 1983. As the two applicants were unable to have their own children, they decided to adopt a child in China from an orphanage in Wu Nam. In September 1991 they adopted the 3rd applicant So Hoi Ling who was born on the 16th August 1991. The child entered Hong Kong illegally on the 31st December 1991 in order to receive medical treatment. A removal order was made against the child on the 19th May 1992 and an appeal to the Immigration

Tribunal was dismissed on the 3rd June 1992. On the 16th December 1992 the Director of Immigration refused to exercise his discretion to allow the child to remain in Hong Kong under s.13 of the Immigration Ordinance. A petition to the Governor was rejected on the 1st July 1992. Following the Director's decision, a request was made on behalf of the applicants to reconsider the case in the light of a psychiatric report dated the 3rd September 1992 from Dr Chung See Yuen which also enclosed some photographs showing the condition of the orphanage and the living conditions of children in Wu Nam. However, despite those conditions which are clearly very unsatisfactory, the Director maintained his refusal for the child to remain in Hong Kong. The original reasons for the refusal are set out in a letter of the Director of Immigration dated the 22nd October 1992. These reasons were reconfirmed in paragraph 7 of Mr John Yeung's second affidavit of the 30th April 1993 which reads :-

".... I considered the effects of splitting Hoi-ling from Mr So and Madam Wu in Hong Kong; the pain and the anguish likely to have on the family and the problem in getting someone to look after the baby in China. I have to balance the concern that no incentive should be given to renewed smuggling of children into Hong Kong as in some cases there were tragic accidents at sea where children were drowned and the position of those children waiting patiently in the queue for their turn to come to Hong Kong be accorded respect and encouragement and that with the high level of legal immigration, the limited resources in Hong Kong has already been overstretched. Having carefully considered all these factors, I came to the conclusion that the public interest considerations have outweighed the considerations in favour of allowing Hoi-ling to stay."

8. In MP564/1993 the 3rd applicant Lau Sin Ting was born in China on the 11th February 1988. Her parents the 1st and 2nd applicants were married in China on the 15th April 1981. At this time the 1st applicant was a Hong Kong resident but the 2nd applicant did not have the right of abode. The 4th applicant Lau Chun was born to the 1st and 2nd applicants in China on the 22nd May 1982. The 2nd and 4th applicants applied in 1987 for one-way permits to join the 1st applicant in Hong Kong. Their applications were granted in 1989 and they came to Hong Kong to live in October of that year. Meanwhile the 3rd applicant was born as I have said on the 11th February 1988. A one-way permit was sought on behalf of the 3rd applicant on several occasions but the applications were refused. However, a two-way permit was obtained in 1992 and the child arrived in Hong Kong on the 7th June 1992 when she was granted a visitor permit until the 30th August 1992 which has since been extended from time to time pending the hearing of these proceedings. As a result she has been a lawful visitor to Hong Kong at all material times. Nevertheless the discretion that can be exercised under s.11(5A)(c) of the Immigration Ordinance to allow her to remain in Hong Kong has been refused.

9. Two petitions to the Governor were rejected on the grounds that there were no exceptional humanitarian grounds to allow Lau Sin Ting to remain in Hong Kong as a resident and that an application should be made to the authorities in China on her behalf for a one-way permit.

10. In exercising the discretion under s.13 of the Immigration Ordinance, Mr John Yeung, the Deputy Director of Immigration said that since 1980 it has been the government's policy on illegal immigrants that they should all be returned to whence they came unless there are considered to be strong humanitarian or compassionate reasons for departing from this policy. It is only in exceptional cases that an illegal immigrant will not be removed from Hong Kong. He referred to the policy for obtaining a one-way exit permit from China which are issued at the rate of 75 per day but said that it is not a factor which determines a decision whether to authorise a person to remain in Hong Kong. Accordingly, it is an important aspect of government policy that illegal immigrants do not secure any advantage except in exceptional circumstances as over approximately 400,000 Chinese citizens who are close members of families in Hong Kong may wish to enter and remain in Hong Kong.

11. It is clear that the policy of the Hong Kong Government as exercised by the Director of Immigration is to remove all illegal immigrants unless there are exceptional circumstances where there are strong or powerful humanitarian grounds. Further, in exercising the discretion, regard is made to the legal routes available to citizens of China to enter Hong Kong by way of the one or two-way permit systems. As a result, few illegal immigrants are permitted to remain in Hong Kong pursuant to the discretion that is available. In exercising the discretion consideration is given to what are described as over-burdened resources in Hong Kong by reasons of the large population so that it is necessary to invoke stringent immigration control.

12. The Director of Immigration has an unfettered discretion under the two sections to which I have referred and no interference can be made in exercising that discretion by way of judicial review unless the Director has acted illegally, irrationally or there has been some procedural impropriety, see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948]1 KB 223.

13. The grounds for relief in each of the three cases with the exception of those based upon the Bill of Rights Ordinance are virtually identical and in effect allege that the Director of Immigration did not consider the humanitarian issues that were put forward so that his decisions were unreasonable in the Wednesbury sense. The grounds for relief are conveniently set out in MP4151/92 which read as follows:

"1. The decisions of the Director of Immigration of 18th August 1992 and 3rd December 1992 in refusing to exercising his discretion in accordance with s.13 of the Immigration Ordinance, Cap.115, in favour of the 6th Applicant were, in all the circumstances, Wednesbury unreasonable.

2. The Director of Immigration has failed to take into account the financial, social and humanitarian circumstances pertaining to all the Applicants. The decisions are necessarily predicated on findings of or assumptions of material facts that are demonstrably incorrect. Alternatively, the Director of Immigration has misdirected himself as to material facts such as to have never lawfully entered upon a proper and fair decision-making process.

3. The decision-making process and the decisions of the Director of Immigration of 18th August 1992 and 3rd December 1992 are fundamentally flawed, as the Director of Immigration has failed to take into account that the minor Applicants have the unfettered right to remain in Hong Kong, yet that human right is rendered nugatory in the absence of their mother.

4. The decision-making process and the decisions of the Director of Immigration of 18th August 1992 and 3rd December 1992 are predicated on an error of law in that the Director of Immigration has failed to exercise the separate and cumulative discretion under s.13 of the Immigration Ordinance, Cap.115, and has merely relied on his earlier decision in making removal orders under s.19 of the Immigration Ordinance, believing that the decision under s.19 is determinative and conclusive of any decision under s.13. This is, inter alia, an error of law on the face of the record.

5. Further and/or alternatively to paragraph 4 hereinabove, the decision- making process and the decisions of the Director of Immigration of 18th August 1992 and 3rd December 1992 are fundamentally flawed in that the Director of Immigration has failed to exercise the separate and cumulative discretion under s.13 of the Immigration Ordinance Cap.115, by adhering strictly and rigidly to a very narrow notion of humanitarian grounds or alternatively, by restricting humanitarian grounds to health reason, and thereby failing to consider adequately or at all other humanitarian factors in the particular circumstances of this case.

[6-12 Inapplicable as these grounds were based upon the Bill of Rights Ordinance.]

13. The Director of Immigration unlawfully sub-delegated the decision whether or not to permit the 6th Applicant to remain in Hong Kong by placing total reliance on the one-way permit system currently in operation between Hong Kong and the Mainland whereby the selection of candidates for granting one-way permit is decided solely by the PRC authorities."

Grounds 1 to 4 are exactly the same as four of the grounds of relief that were advanced in the decision of the Court of Appeal in Chan Heung Mui & Others v. Director of Immigration, Civil Appeal No.168/92 (unreported) where it was held that they were unarguable upon judicial review.

14. Upon the evidence adduced, I am quite satisfied that the first four grounds of relief were fully considered by the Director of Immigration. Indeed it is pertinent to observe that Litton J.A. in Chan Heung Mui's case said at p.13 :

"... I am by no means convinced that, if the Director had given no consideration at all to the humanitarian grounds put forward, the appellants must necessarily have succeeded in these proceedings. Section 13 of the Ordinance imposes no statutory duty of any kind upon the Director, beyond the broad duty falling upon him to administer the scheme of immigration control embodied in the Ordinance fairly and properly."

15. I am in agreement with the views expressed by Litton J.A. provided that if the Director does exercise his discretion upon humanitarian grounds it must be carried out reasonably and fairly.

16. Ground 5 does not advance the case of the applicants for the unfettered discretion on any humanitarian grounds can only be exercised by the Director.

17. Ground 13, that of unlawful sub-delegation in relation to the one- way permit system was considered by Leonard J.in Yu Tai Yee & Others v. Director of Immigration MP 2082 of 1993 (unreported) and by Kaplan J. in Chan Kong Tit & Others v. Director of Immigration MP 2526 of 1993 (unreported) in which both judges considered this point unarguable. I entirely agree with these two decisions.

18. The grounds for relief in each case in effect allege that the Director of Immigration did not consider the humanitarian aspects so that his decisions were unreasonable. However the Director has a very wide discretion, see Ho Ming Sai's case at p.13 where Litton J.A. said :

"The Director has clearly much wider considerations to bear in mind, in exercising his discretion under s.13, than the welfare of the applicants."

19. The Director undoubtedly has a very wide discretion in these matters with the result that unless he has acted unfairly or has abused his power, the court is unable to interfere with that discretion. It is clear that all the evidence on behalf of the applicants was fully considered by the Director of Immigration when exercising his discretion. There is no evidence to show that the Director acted improperly so as to vitiate his administrative decisions. The material placed before me has not disclosed matters which, upon further consideration, might demonstrate an arguable case for the relief sought on the grounds of Wednesbury unreasonableness. Accordingly the Attorney General is entitled to the orders sought by the summonses to set aside the leave granted for the balance of the argument.

20. The position of the Director of Immigration in exercising his discretion is readily understandable having regard to the stringent immigration controls that are required and the reasons for the Director's refusal to allow Madam Cheng, So Hoi Ling and Lau Sin Ting to remain in Hong Kong is based upon the premise that they will be gaining an advantage by jumping the queue over others who are seeking to enter Hong Kong by lawful means. Whereas that is no doubt correct, the circumstances in each case have changed since these three applicants came to Hong Kong. Madam Cheng has now lived in Hong Kong for almost six and a half years while So Hoi Ling has been here nearly two years. The removal orders in those cases were made respectively on the 30th April 1991 and the 19th May 1992. In the other case, Lau Sin Ting has been living with her family for almost 18 months. Whilst criticism may be directed at Lau Sin Ting's mother for signing the undertaking in respect of the two-way permit that she would return to China, nevertheless the person who will suffer the greatest deprivation will be an innocent child. There has been a long time lapse in these cases which is not the fault of the Director but it is contrary to the usual practice that proceedings for judicial review should be heard as expeditiously as possible.

21. The Director of Immigration has a very difficult task to perform in carrying out the policy of the Hong Kong Government when it deals with moral issues. He is required to return all illegal immigrants to the place from where they came unless he exercises his discretion in an exceptional case on strong humanitarian grounds. What is strong was alluded to by Litton J.A. in Chan Heung Mui's case at pages 15 and 16 when he said :-

"What are 'strong or powerful humanitarian reasons"? How strong is 'strong'?"

Indeed having regard to the facts in these three cases it is hard to imagine how much stronger the grounds have to be before the discretion is exercised. It is difficult to believe that the public interest will be served by sending the mother and the two children back to China instead of maintaining the family unit in each case. Considerable family suffering is likely to result from a rigid enforcement of a harsh law.

22. Godfrey J. in both Ho Ming Sai's case and Chan Heung Mui's case expressed his disquiet that there is no avenue of appeal for an illegal immigrant who has a claim on strong humanitarian grounds that have been rejected. At p.26 in Chan Heung Mui's case Godfrey J. had this to say :

"... to give exclusively to the person whose duty it is to keep illegal immigrants out the power to decide whether in exceptional cases to let them in is not the best way of maintaining a fair balance between the interests of the individual on the one hand and the interests of good government on the other hand. Under the present arrangements, the Director of Immigration, no matter how diligently and fairly he seeks to discharge his duties, is placed in a very difficult. The solution to the problem might lie in an amendment to the Immigration Ordinance giving a person against whom a removal order is made a right of appeal to the Governor-in-Council. No doubt careful consideration would have to be given to the formulation of the amendment; a discretion to temper justice with mercy needs to be confined within pretty narrow limits to ensure consistency over what is really not a justiciable issue at all, but a moral issue. This problem has been resolved in New Zealand (and, we were told, elsewhere). In New Zealand the legislation provides a right of appeal to the Minister of Immigration, on whom is conferred power to order that the appellant be not deported if the Minister is satisfied that, because of exceptional circumstances of a humanitarian nature, it would be unduly harsh or unjust to deport the appellant. Since this does seem to work, it might afford a useful precedent."

I entirely agree with the sentiments expressed by Godfrey J. and hope that the authorities will be able to take appropriate steps to amend the Immigration Ordinance.

23. Meanwhile these unfortunate cases must be referred back to the Director of Immigration for his determination.

Representation:

Mr William Marshall, Q.C. and Miss Meena Datwani (Attorney General's Chambers) for Respondent