Chong Sang Chau v. Immigration Tribunal

HCMP003469/1993

993 MP No. 3469

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of hearing: 15 April 1994

Date of delivery of judgment: 15 April 1994

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JUDGMENT

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1. This is an application for Judicial Review. The Decision which it is sought to review is the Decision of the Immigration Tribunal which dismissed the Applicant's appeal against the Removal Order which had been made by the Director of Immigration.

2. It is accepted that the Applicant's mother was an illegal immigrant. According to the evidence given by her and her husband, the Applicant's father, the Applicant was born in Hong Kong on the 30th March 1991.

3. Shortly before the birth Mr. Chong was involved in an accident and one of his legs was broken. As a consequence of this he was in hospital at the time when it was claimed that the Applicant was born.

4. Besides Mrs. Chong the only direct evidence relating to her confinement was the evidence of a Mrs. Lam who performed the functions usually undertaken by a mid wife. According to her she was aware of the fact that Mrs. Chong was an illegal immigrant and it was for that reason that the confinement took place at home rather than in hospital. It was perhaps significant that Madam Lam was prepared to perform these duties even though she had never previously met Mrs. Chong and also she did not attend her at all subsequent to the birth.

5. In July 1992 Mr. Chong applied to the Hong Kong Government for a birth certificate for the Applicant. It was as a consequence of this that the Director of Immigration became aware of the matter.

6. The complaints made by the Applicant relate to the way of the appeal against the Removal Order was conducted and the conclusion which was reached.

7. More specifically the grounds upon which the relief is sought are :-

1. There was a denial to the Applicant of natural justice upon the hearing before the Immigration Tribunal in that the Applicant's representative was not given the opportunity to question the witnesses or comment on the evidence.

2. Further and in the alternative, having heard all the evidence and seen all the documents, the decision of the Tribunal was irrational in that :

(a) No reasonable man would come to the conclusion that the Applicant was not born in Hong Kong and does not enjoy a right of abode.

(b) The Tribunal failed to give sufficient weight to the independent evidence of Madam Lam So Tan.

8. These grounds were elaborated upon by Miss Monica Chow who appeared for the Applicant before me.

9. The approach adopted by Miss Chow was to refer to fairly minor inconsistencies in the records of proceedings which were maintained by the 2 Adjudicators. I must state that having myself gone through the notes kept by the 2 Adjudicators I am impressed by how well the records were kept and the extent to which they corresponded with each other.

10. I would not expect a verbatim transcript to be maintained in informal proceedings such as these Appeals. It is however obvious from these notes that every reasonable effort was made by the Adjudicators to ensure that there was a fair hearing and that all relevant issues were adequately ventilated.

11. I do not consider that the complaints which are made by Mr. Chong in his affirmation in support of the application are such as to lead me to a conclusion that the hearing was not conducted in a fair and reasonable manner and I can see no grounds whatever to justify any intervention by this Court. Also I can see no grounds for criticising the conclusion which was reached by the Adjudicators on the evidence which was before them.

12. There were a number of unsatisfactory aspects of the evidence which was adduced in support of the case that the Applicant was born in Hong Kong on the 30th March 1991. It is by no means surprising that the Tribunal rejected this testimony. However, this is not the test which has to be adopted in judicial review proceedings. It is not open to the Court to substitute its own views for those of the Tribunal. What is required is to establish that the Tribunal has acted in a manner which is "Wednesbury unreasonable".

13. For the reasons I have given the Applicant falls far short of being able to establish this. Accordingly, this application is dismissed and I will hear the parties on costs.

Representation:

Miss Monica Chow inst'd by Haldanes for Applicant

Mr. S.H. Kwok, S.C.C. (Attorney General's Chambers) for Respondent