Li Chun Yan v. Director of Immigration

HCMP001929/1994

1994, MP No.1929

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H E A D N O T E

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THE IMMIGRATION DEPARTMENT RECORDS CONTRADICTED THE VERSION OF THE APPLICANT (FOR RESIDENCE IN HONG KONG) AND THE DOCUMENTS PRODUCED BY HER - THE DIRECTOR OF IMMIGRATION HAS NOT TAKEN IRRELEVANT MATTERS NOR HAS HE FAILED TO TAKE RELEVANT MATTERS INTO CONSIDERATION - HIS DECISION IS NOT UNREASONABLE - APPLICATION FOR JUDICIAL REVIEW REFUSED.

M.P. No. 1929 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram : Hon. Yam J., in Court

Date of hearing : 30 November 1994

Date of delivery of judgment : 30 November 1994

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J U D G M E N T

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1. On 18th August 1993 the Applicant LI Chun Yan applied for change of status to permanent resident under the sponsorship of her husband. They married on 15th March 1993 in Hong Kong.

2. In her application she alleged the following, namely :

(1) The applicant was originally a National of the of People's Republic of China.

(2) She left her home town Si Hui Farm District, Guangdong, China on 8th November 1990 for Sierra Leone.

(3) She arrived in Sierra Leone on 10th November 1990 and was employed as a cashier in her uncle's Chinese restaurant and resided at No.102 King's Street, Sierra Leone.

(4) She obtained Sierra Leone citizenship on 6th March 1991 upon naturalisation.

(5) She obtained her Sierra Leone passport on 9th November 1992.

(6) She left Sierra Leone on 11th February 1993 for good as her said uncle left for China for good.

(7) She spent sometime in Amsterdam before landing in Hong Kong on 17th February 1993.

3. According to Mr CHOW Kwok-chuen, Principle Immigration Officer, he said in his affidavit that :-

"9. Because of the high level of immigration from China, decision was made by the Hong Kong Government in January 1979 not to consider applications for entry into Hong Kong for residence from there. Under the existing policy, residents of China who wish to settle in Hong Kong must apply to the Chinese Authorities for a one-way permit. Recently many residents of China have sought to circumvent the one-way permit scheme by obtaining foreign passports (including Sierra Leone passports) through various investment schemes. Immediately after they obtain the passports they enter Hong Kong as visitors and apply for permission to stay. They know little or nothing about the passport issuing countries and have no connection with them. In order to protect the integrity of the one-way permit scheme, the Hong Kong Government decided in October 1991 that persons of PRC origin holding passports of certain countries would only be allowed to enter Hong Kong for visits. They would not be eligible to apply for residence employment, investment or education in Hong Kong unless they had resided outside China or Macau for at least two years immediately prior to their applications. The policy has been extended to cover Sierra Leone since 15th May 1992."

4. Thus the consideration of the applicant's application for residence by the Director hinges on whether she is able to prove that she had resided outside China or Macau for more than two years immediately prior to the Application. The Applicant has produced the following documents in support of the her application:

(a) a certificate dated 20th April 1993 issued by the Tai Wong Overseas Chinese Farm Branch of Si Hui County Public Security Bureau in China certifying that she left that unit on 8th November 1990 to visit relatives in Sierra Leone;

(b) a Chinese census book showing the deletion of her name from the census record on 8th November 1990;

(c) a certificate of naturalisation issued by Sierra Leone on 6th March 1991;

(d) a Sierra Leone tax clearance certificate date 13th May 1991, certifying that she had made satisfactory arrangements for the settlement of her income liability between 13th May 1991 and 12th May 1992;

(e) a travel clearance permit dated 8th February 1994 issued by the Sierra Leone Police Force certifying that she is a citizen of Sierra Leone and during her stay in Free Town Sierra Leone as a legitimate inhabitant from 10th November 1990 to 11th February 1993 she has no criminal record.

5. Further in support of her application she had written a letter dated 16th September 1993, saying that :

(1) She had held only one Chinese passport.

(2) She had returned that Chinese passport to the Chinese Consulate in Sierra Leone sometime before she became naturalised, i.e. before 6th March 1991.

(3) She has not held any Chinese passport after March 1991.

(4) She had not left Sierra Leone during the period from November 1990 to February 1993.

6. The Applicant was interviewed by an Immigration Officer on 18th February 1994. Part of the Immigration Department record of the interview is as follows :-

"Q.7: Having obtained your Sierra Leonian passport, did you still use or hold a Chinese passport?

A.7: I did not use, hold or re-apply for a Chinese passport after I had obtained a Sierra Leone passport.

Q.8: Would you tell me clearly when you left Sierra Leone for the first time?

A.8: I left Sierra Leone for the first time on 11th February 1993 and did not leave Sierra Leone before this date.

Q.9: I ask you again whether you hold other passports or travel documents after you have obtained the Sierra Leonian passport?

A.9: No, I have all along been using the Sierra Leone passport after obtaining it and do not hold other passports and travel documents."

7. However, according to the Immigration Department there are records which revealed the following :

(1) A person in the name of the applicant entered Hong Kong from China on 17th January 1993 on a PRC passport issued in Shaoxing, China on 27th November 1992.

(2) In her transit visa application form submitted at the Lowu Control Point on 17th January 1993, the applicant claimed that she was residing at Tai Wong Oversea Chinese Farm in Si Hui County, China.

(3) Her father was Li Ying Keung.

(4) Records of arrival/departure/extension also revealed that that person left Hong Kong for Bangkok on 22nd January 1993 and returned to Hong Kong on 27th January 1993 on the same PRC passport.

(5) On 1st February 1993 that person applied for an extension of stay at the Chinese Visitors Office of the Hong Kong Immigration Department. In the application she stated that she was residing at the Tai Wong Oversea Chinese Farm in Si Hui County China. She also reported in the record of family background the names of her family members which are exactly the same as the Applicant's family members.

(6) A copy of the PRC passport issued on 27th November 1992 in China has the Applicant's photo and this was produced in her aforesaid application for extension of stay.

(7) The Applicant's term of stay in Hong Kong originally expired on 3rd February 1993, she produced air ticket to depart from Hong Kong on 5th February 1993 to the respondent and the said air ticket shows that the Applicant was travelling to Amaterdam with an open over ticket to Free Town, Sierra Leone.

(8) Further the Applicant's own passport issued by Sierra Leone did not show the applicant had travelled to China until 24th February 1994, i.e. after she had landed in Hong Kong with that passport, and she was travelling on a visa issued by the Chinese Embassy in Sierra Leone.

8. In the aforesaid interview on 18th February 1994, the Applicant said the two signatures on the two arrival records of LI Chun Yan on 17th and 27th January were not signed by her. She then refused to answer questions (on her solicitors' advice) as to whether she entered Hong Kong on 17th and 27th January 1993 on the strength of a Chinese passport and any other questions put to her.

9. The Director of Immigration came to the following decision in rejecting the objection raised by the applicant as follows:

(a) the consideration of Mrs Wong's application hinges on whether she is able to prove that she had resided outside China or Macau for more than 2 years. The Immigration Department record showed that a Miss Li Chun Yan entered Hong Kong from China on 17th January 1993 on strength of a PRC passport issued on 27th November 1992. Using the same PRC passport Miss Li left for Bangkok on 22nd January 1993 and came back on 27th January 1993. She left Hong Kong again on 5th February 1993 for Amsterdam on the same PCR passport. On 17th February 1993 Mrs Wong entered Hong Kong from Amsterdam on the strength of Sierra Leone Passport (No.0166445) issued in her maiden name Li Chun Yan. Although she refused to answer questions put to her, the fact remains that the signatures on the arrival cards of Miss Li Chun Yan dated 17th January 1993 from China and 27th January 1993 from Bangkok are identical to those made by her in her letters submitted to the Immigration Department on 11th May and 19th September 1993. Moreover, in the transit visa application form submitted by Miss Li Chun Yan at Lowu on 17th January 1993, she reported her father's name as Mr Li Ying Keung. In Mrs Wong's current application for residence and in the Chinese Census Book the name of her father was also reported as Mr Li Ying Keung. Therefore, the Director has reason to believe that her claim that she had been residing in Sierra Leone from 10th November 1993 to 11th February 1993 could not be true;

(b) given that Mrs Wong was issued with a PRC passport in as late as November 1992, the Director is unconvinced that she had resided outside China, Hong Kong or Macau for at least two years immediately prior to the application; and

(c) Mrs Wong has no legal right to remain in Hong Kong and there are no compassionate grounds to justify a departure from the policy. At present, the entry of a PRC national to joint relatives in Hong Kong is catered for through the one-way permit scheme. It is unfair to allow her to jump the queue."

10. The question now before the court is whether in the decision of the Director he has taken any irrelevant matters into account or failed to take into relevant matters or otherwise such a decision is unreasonable.

11. Mr Cheng for the applicant submitted that even if it were in fact the applicant who used a PRC passport to enter Hong Kong at the time as alleged, it was by itself a fact irrelevant to the question as to whether there was at least two years immediately prior to the application that the applicant had resided outside China as both the Chinese Census Book and the certificate issued by the relevant Chinese Public Security Bureau showed that the applicant left China on 8th November 1990 and two years from that date would bring the date to 8th November 1992. There is no evidence to show that the applicant has gone back to reside in China or Macau during this period.

12. With respect I must say I cannot accept this submission. Those matters must be relevant to whether the applicant's version that she has resided in Sierra Leone between 10th November 1990 to 11th February 1993 is true or not.

13. The burden is on the applicant to satisfy the Director that two years immediately prior to the application, she had resided outside China. It has never been her case (even up to today, in this application before me,) that she had gone from Sierra Leone to China after she had obtained her Sierra Leonian passport (on the 9th November 1992) and obtained the PRC passport on 27th November 1992, and then she travelled in and out of Hong Kong between 17th January 1993 and 5th February 1993 before she finally came from Sierra Leone to Hong Kong on 17th February 1993. If that was her case, she would have to convince the Director that she had substantially fulfilled the scheme of two years residence outside Hong Kong immediately prior to her application or that she had not taken up any residence in China during that short period of time. Of course, she would then have to explain on what passport she travelled from Sierra Leone to China as her Sierra Leonian passport did not show such a travel to China until 24th February 1993. Further, she would have to explain why she gave those contradictory versions of not leaving Sierra Leono until 11th February 1993 and denying her own signatures on the two arrival cards on 17th and 27th January 1993 and why she said she had not held any other passport or travelling documents after she had obtained her Sierra Leonian passport. This is simply not her case.

14. Her case was disbelieved by the Director and those matters taken into consideration by the Director are all relevant matters in respect of the credibility of her version of residing in Sierra Leone for that alleged period of time. Further, it is not the case that the Director had not taken into account relevant matters in those five documents produced by her. The Director simply cannot accept her version and what those five documents purportedly certified to be true. They contradicted the clear evidence in the records of the Immigration Department that she was travelling on the recently issued PRC passport from China and in and out of Hong Kong in early 1993 when she said she was all the time physically residing in Sierra Leone and she denied her own signatures on those documents in the Director's record. The evidence before the Director was so compelling that that person was the applicant herself.

15. Finally Mr Cheng for the applicant attacks the decision of the Director as being Wednesbury unreasonable. In the often quoted passage of Lord Greene, M.R. in the case of Associated Provincial Pictures Houses Ltd. v. Wednesbury Corporation [1947] 2 All E.R. 680 at page 685, the Master of Roll said :

"I do not wish to repeat what I have said, but it might be useful to summarise once again the principle, which seems to me to be that the court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not that of an appellate authority to override a decision of the local authority, but is that of a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in it."

16. In the subsequent case of Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at page 410, Lord Diplock said this:

"By 'irrationality' I mean what can be now be succinctly referred to as 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Ltd. v. Corporation [1948] 1 K.B. 233). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system."

17. In this case, I cannot find, in conclusion, any unreasonableness on the part of the Director. The Director has not taken irrelevant matters into the consideration nor has he failed to take into account relevant matters. In fact I would venture to say in this case that I find the Director's decision and conclusion entirely reasonable and logical. This application for judicial review is dismissed with costs to the Respondent.

Representation:

Mr James Cheng, inst'd by Paul Kwong & Co., for Applicant

Miss D. Watson and Miss J. Fung, Crown Counsel of Attorney General's Chambers, for Respondent