Read the full judgment text of MP 2082/1993 on BabelCite. This MP judgment was delivered on 6 December 1993 before Jones J..
Immigration law – judicial review – leave to apply for judicial review – setting aside leave – Director of Immigration's discretion under s.13 and s.11(5A)(c) of the Immigration Ordinance, Cap.115 – illegal immigrants and visitor with two-way permit – humanitarian grounds – family unity, medical needs and long stay – Wednesbury unreasonableness – whether Director's discretion is unfettered and unreviewable absent illegality, irrationality or procedural impropriety – sub-delegation by reliance on PRC one-way permit system – Bill of Rights Ordinance inapplicable to immigration control – three consolidated applications: MP4151/1992 (Madam Cheng, illegal immigrant mother of five Hong Kong-born children), MP70/1993 (So Hoi Ling, adopted infant brought for medical treatment) and MP564/1993 (Lau Sin Ting, child visitor on two-way permit). First issue: whether the Director's refusal to exercise his discretion in favour of the applicants on humanitarian grounds was Wednesbury unreasonable – held No; the Director has an unfettered discretion, very wide considerations to bear in mind beyond the welfare of the applicants, and the court cannot interfere unless he acts illegally, irrationally or with procedural impropriety (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223). Second issue: whether reliance on the PRC-administered one-way permit system amounted to unlawful sub-delegation – held No; ground unarguable, following Yu Tai Yee v. Director of Immigration MP2082/1993 and Chan Kong Tit v. Director of Immigration MP2526/1993. The court followed Ho Ming Sai v. Director of Immigration CA 162/1992 and Chan Heung Mui v. Director of Immigration CA 168/1992, in which Kempster JA and Litton JA held substantially identical grounds unarguable. Outcome: leave for judicial review set aside in each case; the cases referred back to the Director of Immigration; court endorses the suggestion of Godfrey J. that the Immigration Ordinance be amended to provide a right of appeal to the Governor in Council against a removal order where strong humanitarian grounds have been rejected, drawing on the New Zealand model of appeal to the Minister of Immigration on exceptional humanitarian circumstances.
Legal issues: Whether the Director of Immigration acted Wednesbury unreasonably in refusing to exercise discretion to allow illegal immigrants to remain in Hong Kong on humanitarian grounds · Whether unlawful sub-delegation arose from reliance on the one-way permit system
Outcome: Leave for judicial review set aside in each of the three cases; applications dismissed. The court endorsed the suggestion of Godfrey J. in Ho Ming Sai that the Immigration Ordinance should be amended to provide a right of appeal to the Governor in Council against removal orders where strong humanitarian grounds are rejected.
Cited by 2 cases